THE

LAW OF NATIONS

OR

PRINCIPLES OF THE LAW OF NATURE
APPLIED TO THE CONDUCT AND AFFAIRS
OF NATIONS AND SOVEREIGNS


FROM THE FRENCH OF

MONSIEUR DE VATTEL.



"Nihil est enim illi principi Deo qui omnem hunc mundum regit, quod quidem in terris fiat, acceptium, quam concilia coestusque hominum jure sociati, quæ civitates appellantur." Cicero, Som Scip. [1]


FROM THE NEW EDITION, BY

JOSEPH CHITTY, Esq. Barrister At Law

WITH ADDITIONAL NOTES AND REFERENCES,
By EDWARD D. INGRAHAM, Esq.


PHILADELPHIA:
T. & J. W. JOHNSON & CO., LAW BOOKSELLERS,
No. 535 CHESTNUT STREET.
1883.


Main Index - Links To Sections Of This Html Page
Preface to the 1999 Digital Edition
PREFACES - TO 1800's EDITIONS
PREFACE [VATTEL 1758]
Detailed TABLE OF CONTENTS
THE LAW OF NATIONS - PRELIMINARIES.
BOOK I. OF NATIONS CONSIDERED IN THEMSELVES. text
BOOK II: OF A NATION CONSIDERED IN HER RELATION TO OTHER STATES. text
BOOK III: OF WAR. text
BOOK IV. OF THE RESTORATION OF PEACE: AND OF EMBASSIES. text
INDEX   ("under construction")
COMMENTARY - by Áucker


The LAW OF NATIONS

Preface to the 1999 Digital Edition

This digital edition is taken from the 1883 printing of the 1852 edition of Joseph Chitty, which contained numerous typographical and spelling errors which have been silently corrected. We have followed Chitty's convention of surrounding his endnotes in parentheses, and indicating which endnotes are his and which are from previous editions, but we have converted Vattel's footnotes into numbered chapter endnotes. We have also silently substituted chapter and section references for page references wherever these can be ascertained, and made a few other minor changes and additions, indicated by enclosure in square brackets. Greek characters have been converted into Latin characters pending support for the Greek character set in these digital formats.

This 1758 work by Swiss legal philosopher Emmerich de Vattel is of special importance to scholars of constitutional history and law, for it was read by many of the Founders of the United States of America, and informed their understanding of the principles of law which became established in the Constitution of 1787. Chitty's notes and the appended commentaries by Edward D. Ingraham, used in lectures at William and Mary College, provide a valuable perspective on Vattel's exposition from the viewpoint of American jurists who had adapted those principles to the American legal experience.

Endnotes added to this digital edition are separately numbered, with the numbers surrounded by double square brackets [[ ]] .

All errors are the responsibility of the digital editor and anyone finding an error is urged to submit the correction. Particular attention should be paid to the Latin and Greek endnotes, which may contain errors taken from the printed editions.

Jon Roland, April 26, 1999


The LAW OF NATIONS

Entered according to Act of Congress, in the year 1852, by T. & J. W. Johnson, in the Clerk's Office of the District Court of the Eastern District of Pennsylvania.


The LAW OF NATIONS

PREFACES - TO 1800's EDITIONS


PREFACE TO [1852] EDITION.

The text of the present translation of Vattel has been carefully compared with that of the original work, in the first edition which appeared, (Londres, 1758, 2 vol. in quarto,) published at Neufchatel; in that of Amsterdam, (Van Harrevelt, 1775, 2 vol. in quarto,) the best known till recently; and in that of M. de Hoffmans, (Paris, 1839, 2 vol. in octavo,) the last and best edition. Great care has been taken also in regard to the British decisions cited by the English editor. It was discovered, that many inaccuracies existed in the citations, particularly in the names of the cases cited, which have been corrected by references to the original reports of the decisions: and wherever it appeared that the notes of the English editor required additions to render the doctrine advanced in them clearer, or more intelligible, such additions have been made; care having been taken to distinguish the matter added by enclosing it in brackets. The editor regrets very much that the size of the volume — which would have been too much increased by such an extension — did not permit him to annex to it the "Bibliographie choisie et systematique du Droit de la Nature et des Gens, et du Droit Public," of M. de Hoffmans, which is an excellent guide in the choice of Works upon a subject much less attended to than is demanded by its importance.

Philadelphia, Sept. 29,1852.


The LAW OF NATIONS

PREFACE TO THE [1833] EDITION

Many years have elapsed since the original work was published, long before the invaluable decisions of Sir William Scott, Sir C. Robinson, and Sir John Nichol, and other eminent Judges in the Courts of Admiralty, and Prize and other Courts; and the last edition upon which any care was bestowed, was published in A.D. 1797; since which time, and especially during the last general war, many most important rules respecting the Law of Nations were established. The object of the present Editor has, therefore, been to collect and condense, in numerous notes, the modern rules and decisions, and to fortify the positions in the text by references to other authors of eminence, and by which he hopes that this edition will be found of more practical utility, without interfering with the text, or materially increasing its size.

The Editor had proposed to form an Index, so as to render the work more readily accessible; but, in that desire, he has been overruled by the publishers, who think that the exceedingly full Analytical Table of Contents following the Preface, and naming the pages where each position is to be found, are sufficient, without increasing the bulk of the work, and, consequently, the expense. The Editor hopes that the student who may examine his numerous notes will not think that he has wasted time.

J. CHITTY.

Chambers, 6, Chancery Lane, November, 1833


The LAW OF NATIONS

ADVERTISEMENT

TO THE EDITION OF A.D. 1797.

IN undertaking this new edition of Monsieur De Vattel's treatise, it was not my intention to give what might strictly be called a new translation. To add the author's valuable notes from the posthumous edition, printed at Neufchatel in 1773, — to correct some errors I had observed in the former version, — and occasionally to amend the language where doubtful or obscure, — were the utmost limits of my original plan. As I proceeded, however, my alterations became more numerous; but whether they will be acknowledged as amendments, it must rest with the reader to determine. Even if this decision should be more favourable than I have any reason to expect, I lay no claim to praise for my humble efforts, but shall esteem myself very fortunate if I escape the severity of censure for presenting the work to the public in a state still so far short of perfection. Conscious of its defects, I declare, with great sincerity, —

... Veniam pro laude peto, — laudatus abunde, Non fastiditus si tibi, lector, ero.

THE EDITOR,

London, May 1, 1797.


The LAW OF NATIONS

PREFACE

TO THE [1797] EDITION.

THE merits and increasing utility of this admirable work have not, as yet, been sufficiently known, or justly appreciated. It has been generally supposed that it is only adapted for the study of sovereigns and statesmen, and in that view certainly the author's excellent Preface points out its pre-eminent importance. But it is of infinitely more extended utility. It contains a practical collection of ethics, principles, and rules of conduct to be observed and pursued, as well by private individuals as by states, and these of the utmost practical importance to the well-being, happiness, and ultimate and permanent advantage and benefit of all mankind; and, therefore, ought to be studied by every gentleman of liberal education, and by youth, in whom the best moral principles should be inculcated. The work should be familiar in the Universities, and in every class above the inferior ranks of society. And, as regards lawyers, it contains the clearest rules of construing private contracts, and respecting the Admiralty and Insurance Law. The positions of the author, moreover, have been so sensibly and clearly supported and explained, and so happily illustrated by historical and other interesting examples, that the perusal cannot fail to entertain as well as instruct. The present Editor, therefore, affirms, without the hazard of contradiction, that every one who has attentively read this work, will admit that he has acquired a knowledge of superior sentiments and more important information than he ever derived from any other work.


The LAW OF NATIONS

PREFACE

[Vattel 1758]

THE Law of Nations, though so noble and important a subject, has not, hitherto, been treated of with all the care it deserves. The greater part of mankind have, therefore, only a vague, a very incomplete, and often even a false notion of it. The generality of writers, and even celebrated authors, almost exclusively confine the name of "Law of Nations" to certain maxims and treatises recognised among nations, and which the mutual consent of the parties has rendered obligatory on them. This is confining within very narrow bounds a law so extensive in its own nature, and in which the whole human race are so intimately concerned; it is, at the same time, a degradation of that law, in consequence of a misconception of its real origin.

There certainly exists a natural law of nations, since the obligations of the law of nature are no less binding on states, on men united in political society, than on individuals. But, to acquire an exact knowledge of that law, it is not sufficient to know what the law of nature prescribes to the individuals of the human race. The application of a rule to various subjects, can no otherwise be made than in a manner agreeable to the nature of each subject. Hence, it follows, that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns. All treatises, therefore, in which the law of nations is blended and confounded with the ordinary law of nature, are incapable of conveying a distinct idea, or a substantial knowledge of the sacred law of nations.

The Romans often confounded the law of nations with the law of nature, giving the name of "the law of nations" (Jus Gentium) to the law of nature, as being generally acknowledged and adopted by all civilized nations.1 The definitions given by the emperor Justinian, of the law of nature, the law of nations, and the civil law, are well known. "The law of nature," says he, "is that which nature teaches to all animals":2 thus he defines the natural law in its most extensive sense, not that natural law which is peculiar to man, and which is derived as well from his rational as from his animal nature. "The civil law," that emperor adds, "is that which each nation has established for herself, and which peculiarly belongs to each state or civil society. And that law, which natural reason has established among all mankind, and which is equally observed by all people, is called the law of nations, as being law which all nations follow.3 In the succeeding paragraph, the emperor seems to approach nearer to the sense we at present give to that term. "The law of nations," says he, "is common to the whole human race. The exigencies and necessities of mankind have induced all nations to lay down and adopt certain rules of right. For wars have arisen, and produced captivity and servitude, which are contrary to the law of nature; since, by the law of nature, all men were originally born free."4 But from what he adds, — that almost all kinds of contracts, those of buying and selling, of hire, partnership, trust, and an infinite number of others, owe their origin to that law of nations,— it plainly appears to have been Justinian's idea, that, according to the situations and circumstances in which men were placed, right reason has dictated to them certain maxims of equity, so founded on the nature of things, that they have been universally acknowledged and adopted. Still this is nothing more than the law of nature, which is equally applicable to all mankind.

The Romans, however, acknowledged a law whose obligations are reciprocally binding on nations: and to that law they referred the right of embassies. They had also their fecial law, which was nothing more than the law of nations in its particular relation to public treaties, and especially to war. The feciales were the interpreters, the guardians, and, in a manner, the priests of the public faith.5 The moderns are generally agreed in restricting the appellation of "the law of nations" to that system of right and justice which ought to prevail between nations or sovereign states. They differ only in the ideas they entertain of the origin whence that system arose, and of the foundations upon which it rests. The celebrated Grotius understands it to be a system established by the common consent of nations: and he thus distinguishes it from the law of nature: "When several persons, at different times, and in various places, maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two — either a just consequence drawn from natural principles, or a universal consent. The former discovers to us the law of nature, and the latter the law of nations."6

That great man, as appears from many passages in his excellent work, had a glimpse of the truth: but as he had the task of extracting from the rude ore, as it were, and reducing into regular shape and form, a new and important subject, which had been much neglected before this time, it is not surprising that, having his mind burthened with an immense variety of objects, and with a numberless train of quotations, which formed a part of his plan, he could not always acquire those distinct ideas so necessary in the sciences. Persuaded that nations, or sovereign powers, are subject to the authority of the law of nature, the observance of which he so frequently recommends to them, that learned man, in fact, acknowledged a natural law of nations, which he somewhere calls the internal law of nations: and, perhaps it will appear that the only difference between him and us lies in the terms. But we have already observed, that, in order to form this natural law of nations, it is not sufficient simply to apply to nations what the law of nature decides with respect to individuals. And, besides, Grotius, by his very distinction, and by exclusively appropriating the name of "the law of nations" to those maxims which have been established by the common consent of mankind, seems to intimate that sovereigns, in their transactions with each other, cannot insist on the observance of any but those last-mentioned maxims, reserving the internal law for the direction of their own consciences. If, setting out with the idea that political societies or nations live, with respect to each other, in a reciprocal independence, in the state of nature, and that, as political bodies, they are subject to the natural law, Grotius had, moreover, considered that the law must be applied to these new subjects in a manner suitable to their nature, that judicious author would easily have discovered that the natural law of nations is a particular science; that it produces between nations even an external obligation wholly independent of their will; and that the common consent of mankind is only the foundation and source of a particular kind of law, called the Arbitrary Law of Nations.

Hobbes, in whose work we discover the hand of a master, notwithstanding his paradoxes and detestable maxims, — Hobbes was, I believe, the first who gave a distinct, though imperfect idea, of the law of nations. He divides the law of nature into that of man, and that of states: and the latter is, according to him, what we usually call the law of nations. "The maxims," he adds, "of each of these laws are precisely the same: but as states, once established, assume personal properties, that which is termed the natural law, when we speak of the duties of individuals is called the law of nations when applied to whole nations or states."7 This author has well observed, that the law of nations is the law of nature applied to states or nations. But we shall see, in the course of this work, that he was mistaken in the idea that the law of nature does not suffer any necessary change in that application, an idea, from which he concluded that the maxims of the law of nature and those of the law of nations are precisely the same.

Pufendorf declares that he unreservedly subscribes to this opinion espoused by Hobbes.8 He has not, therefore, separately treated of the law of nations, but has everywhere blended it with the law of nature, properly so called.

Barbeyrac, who performed the office of translator and commentator to Grotius and Pufendorf, has approached much nearer to the true idea of the law of nations. Though the work is in everybody's hands, I shall here, for the readers' convenience, transcribe one of that learned translator's notes on Grotius's Law of War and Peace.9 "I acknowledge," says he, "that there are laws common to all nations — things which all nations ought to practise towards each other: and if people choose to call these the law of nations, they may do so with great propriety. But, setting aside the consideration that the consent of mankind is not the basis of the obligation by which we are bound to observe those laws, and that it cannot even possibly take place in this instance — the principles and the rules of such a law are, in fact, the same as these of the law of nature, properly so called; the only difference consisting in the mode of their application, which may be somewhat varied, on account of the difference that sometimes happens in the manner in which nations settle their affairs with each other."

It did not escape the notice of the author we have just quoted, that the rules and decisions of the law of nature cannot be purely and simply applied to sovereign states, and that they must necessarily undergo some modifications in order to accommodate them to the nature of the new subjects to which they are applied. But it does not appear that he discovered the full extent of this idea, since he seems not to approve of the mode of treating the law of nations separately from the law of nature as relating to individuals. He only commends Budæus's method, saying, "It was right in that author to point out,10 after each article of the law of nature, the application which may be made of it to nations in their mutual relations to each other, so far, at least as his plan permitted or required that he should do this,"11 Here Barbeyrac made one step, at least, in the right track: but it required more profound reflection, and more extensive views, in order to conceive the idea of a system of natural law of nations, which should claim the obedience of states and sovereigns, to perceive the utility of such a work, and especially to be the first to execute it.

This glory was reserved for the Baron de Wolf. That great philosopher saw that the law of nature could not, with such modifications as the nature of the subjects required, and with sufficient precision, clearness, and solidity, be applied to incorporated nations, or states, without the assistance of those general principles and leading ideas by which the application is to be directed; that it is by those principles alone we are enabled evidently to demonstrate that the decisions of the law of nature, respecting individuals, must, pursuant to the intentions of that very taw, be changed and modified in their application to states and political societies, and thus to form a natural and necessary law of nations:12 whence he concluded, that it was proper to form a distinct system of the law of nations, a task which he has happily executed. But it is just that we should hear what Wolf himself says in his Preface.

"Nations,"13 says he, "do not, in their mutual relations to each other, acknowledge any other law than that which Nature herself has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations, as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature; and, for that reason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The law which arises from this application, and the obligations resulting from it, proceed from that immutable law founded on the nature of man; and thus the law of nations certainly belongs to the law of nature: it is, therefore, on account of its origin, called the natural, and, by reason of its obligatory force, the necessary law of nations. That law is common to all nations; and if any one of them does not respect it in her actions, she violates the common rights of all the others.

"But nations or sovereign states being moral persons, and the subjects of the obligations and rights resulting, in virtue of the law of nature, from the act of association which has formed the political body, the nature and essence of these moral persons necessarily differ, in many respects, from the nature and essence of the physical individuals, or men, of whom they are composed. When, therefore, we would apply to nations the duties which the law of nature prescribes to individual man, and the rights it confers on him in order to enable him to fulfil his duties, since those rights and those duties can be no other than what are consistent with the nature of their subjects, they must, in their application, necessarily undergo a change suitable to the new subjects to which they are applied. Thus, we see that the law of nations does not, in every particular, remain the same as the law of nature, regulating the actions of individuals. Why may it not, therefore, be separately treated of, as a law peculiar to nations?"

Being myself convinced of the utility of such a work, I impatiently waited for Monsieur Wolf's production, and, as soon as it appeared, formed the design of facilitating, for the advantage of a greater number of readers, the knowledge of the luminous ideas which it contains. The treatise of the philosopher of Hall on the law of nations is dependent on all those of the same author on philosophy and the law of nature. In order to read and understand it, it is necessary to have previously studied sixteen or seventeen quarto volumes which precede it. Besides, it is written in the manner and even in the formal method of geometrical works. These circumstances present obstacles which render it nearly useless to those very persons in whom the knowledge and taste of the true principles of the law of nations are most important and most desirable. At first I thought that I should have had nothing farther to do than to detach this treatise from the entire system, by rendering it independent of every thing Monsieur Wolf had said before, and to give it a new form, more agreeable, and better calculated to insure it a reception in the polite world. With that view, I made some attempts; but I soon found, that if I indulged the expectation of procuring readers among that class of persons for whom I intended to write, and of rendering my efforts beneficial to mankind, it was necessary that I should form a very different work from that which lay before me, and undertake to furnish an original production. The method followed by Monsieur Wolf has had the effect of rendering his work dry, and in many respects incomplete. The different subjects are scattered through it in a manner that is extremely fatiguing to the attention; and, as the author had, in his "Law of Nature," treated of universal public law, he frequently contents himself with a bare reference to his former production, when, in handling the law of nations, he speaks of the duties of a nation towards herself.

From Monsieur Wolf's treatise, therefore, I have only borrowed whatever appeared most worth of attention, especially the definitions and general principles; but I have been careful in selecting what I drew from that source, and have accommodated to my own plan the materials with which he furnished me. Those who have read Monsieur Wolf's treatises on the law of nature and the law of nations, will see what advantage I have made of them. Had I everywhere pointed out what I have borrowed, my pages would be crowded with quotations equally useless and disagreeable to the reader. It is better to acknowledge here, once for all, the obligations I am under to that great master. Although my work be very different from his, (as will appear to those who are willing to take the trouble of making the comparison,) I confess that I should never have had the courage to launch into so extensive a field, if the celebrated philosopher of Hall had not preceded my steps, and held forth a torch to guide me on my way.

Sometimes, however, I have ventured to deviate from the path which he had pointed out, and adopted sentiments opposite to his.

I will here quote a few instances. Monsieur Wolf, influenced, perhaps, by the example of numerous other writers, has devoted several sections14 to the express purpose of treating of the nature of patrimonial kingdoms, without rejecting or rectifying that idea so degrading to human kind. I do not even admit of such a denomination, which I think equally shocking, improper, and dangerous, both in its effects, and in the impressions it may give to sovereigns: and in this, I flatter myself I shall obtain the suffrage of every man who possesses the smallest spark of reason and sentiment, in short, of every true citizen.

Monsieur Wolf determines (Jus Gent. § 878) that it is naturally lawful to make use of poisoned weapons in war. I am shocked at such a decision, and sorry to find it in the work of so great a man. Happily for the human race, it is not difficult to prove the contrary, even from Monsieur Wolf's own principles. What I have said on this subject may be seen in Book III. § 156.

In the very outset of my work, it will be found that I differ entirely from Monsieur Wolf in the manner of establishing the foundations of that species of law of nations which we call voluntary. Monsieur Wolf deduces it from the idea of a great republic (civitatis maximæ) instituted by nature herself, and of which all nations of the world are members. According to him, the voluntary law of nations is, as it were, the civil law of that great republic. This idea does not satisfy me; nor do I think the fiction of such a republic either admissible in itself, or capable of affording sufficiently solid grounds on which to build the rules of the universal law of nations, which shall necessarily claim the obedient acquiescence of sovereign states. I acknowledge no other natural society between nations than that which nature has established between mankind in general. It is essential to every civil society (civitati) that each member have resigned a part of his right to the body of the society, and that there exist in it an authority capable of commanding all the members, of giving them laws, and of compelling those who should refuse to obey. Nothing of this kind can be conceived or supposed to subsist between nations. Each sovereign state claims, and actually possesses an absolute independence on all the others. They are all, according to Monsieur Wolf himself, to be considered as so many individuals who live together in the slate of nature, and who acknowledge no other laws but those of nature, or of her Great Author. Now, although nature has indeed established a general society between mankind, by creating them subject to such wants as render me assistance of their fellow creatures indispensably necessary to enable them to live in a manner suitable to men, yet she has not imposed on them any particular obligation to unite in civil society, properly so called: and if the all obeyed the injunctions of that good parent, their subjection to the restraints of civil society would be unnecessary. It is true, that as there does not exist in mankind a disposition voluntarily to observe towards each other the rules of the law of nature, they have had recourse to a political association, as the only adequate remedy against the depravity of the majority the only means of securing the condition of the good, and repressing the wicked: and the law of nature itself approves of this establishment. But it is easy to perceive that the civic association is very far from being equally necessary between nations, as it was between individuals. We cannot, therefore, say, that nature equally recommends it, much less that she has prescribed it. Individuals are so constituted, and are capable of doing so little by themselves, that they can scarcely subsist without the aid and the laws of civil society. But, as soon as a considerable number of them have united under this same government, they become able to supply most of their wants; and the assistance of other political societies is not so necessary to them as that of individuals is to an individual. These societies have still, it is true, powerful motives for carrying on a communication and commerce with each other; and it is even their duty to do it; since no man can, without good reasons, refuse assistance to another man. But the law of nature may suffice to regulate this commerce, and this correspondence. States conduct themselves in a different manner from individuals. It is not usually the caprice or blind impetuosity of a single person that forms the resolutions and determines the measures of the public: they are carried on with more deliberation and circumspection; and, on difficult or important occasions, arrangements are made and regulations established by means of treaties. To this we may add, that independence is even necessary to each state, in order to enable her properly to discharge the duties she owes to herself and to her citizens, and to govern herself in the manner best suited to her circumstances. It is, therefore, sufficient (as I have already said) that nations should conform to what is required of them by the natural and general society established between all mankind.

But, says Monsieur Wolf, a rigid adherence to the law of nature cannot always prevail in that commerce and society of nations; it must undergo various modifications, which can only be deduced from this idea of a kind of great republic of nations, whose laws, dictated by sound reason, and founded on necessity, shall regulate the alterations to be made in the natural and necessary law of nations, as the civil laws of a particular state determine what modifications shall take place in the natural law of individuals. I do not perceive the necessity of this consequence; and I flatter myself that I shall, in the course of this work, be able to prove, that all the modifications, all the restrictions, — in a word, all the alterations which the rigour of the natural law must be made to undergo in the affairs of nations, and from which the voluntary law of nations is formed, — to prove, I say, that all these alterations are deducible from the natural liberty of nations, from the attention due to their common safely, from the nature of their mutual correspondence, their reciprocal duties, and the distinctions of their various rights, internal and external, perfect and imperfect, — by a mode of reasoning nearly similar to that which Monsieur Wolf has pursued, with respect to individuals, in his treatise on the law of nature.

In that treatise it is made to appear that the rules which, in consequence of the natural liberty of mankind, must be admitted in questions of external right, do not cancel the obligation which the internal right imposes on the conscience of each individual. It is easy to apply this doctrine to nations, and, by carefully drawing the line of distinction between the internal and external right — between the necessary and the voluntary law of nations — to teach them not to indulge themselves in the commission of every act which they may do with impunity, unless it be approved by the immutable laws of justice and the voice of conscience.

Since nations, in their transactions with each other, are equally bound to admit those exceptions to, and those modifications of, the rigour of the necessary law, whether they be deduced from the idea of a great republic of which all nations are supposed to be the members, or derived from the source from whence I propose to draw them, — there can be no reason why the system which thence results should not be called the Voluntary Law of nations, in contradistinction to the necessary, internal, and consciential law. Names are of very little consequence: but it is of considerable importance carefully to distinguish these two kinds of law, in order that we may never confound what is just and good in itself, with what is only tolerated through necessity.

The necessary and the voluntary laws of nations are therefore both established by nature, but each in a different manner: the former, as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, as a rule which the general welfare and safety oblige them to admit in their transactions with each other. The necessary law immediately proceeds from nature; and that common mother of mankind recommends the observance of the voluntary law of nations, in consideration of the state in which nations stand with respect to each other, and for the advantage of their affairs. This double law, founded on certain and invariable principles, is susceptible of demonstration, and will constitute the principal subject of this work.

There is another kind of law of nations, which authors call arbitrary, because it proceeds from the will or consent of nations. States, as well as individuals, may acquire rights and contract obligations, by express engagements, by compact and treaties; hence results a conventional law of nations, peculiar to the contracting powers. Nations may also bind themselves by their tacit consent: upon this ground rest all those regulations which custom has introduced between different states, and which constitute the wage of nations, or the law of nations founded on custom. It is evident that this law cannot impose any obligation except on those particular nations who have, by long use, given their sanction to its maxims: it is a peculiar law, and limited in its operations, as the conventional law; both the one and the other derive all their obligatory force from that maxim of the natural law which makes it the duty of nations to fulfil their engagements, whether express or tacit. The same maxim ought to regulate the conduct of states with regard to the treaties they conclude and the customs they adopt. I must content myself with simply laying down the general rules and principles which the law of nature furnishes for the direction of sovereigns in this respect. A particular detail of the various treaties and customs of different states belongs to history, and not to a systematic treatise on the law of nations.

Such a treatise ought, as we have already observed, principally to consist in a judicious and rational application of the principles of the law of nature to the affairs and conduct of nations and sovereigns. The study of the law of nations supposes therefore a previous knowledge of the ordinary law of nature; and, in fact, I proceed on the supposition that my readers are already, to a certain degree at least, possessed of that knowledge. Nevertheless, as it is not agreeable to readers in general to be obliged to recur to other authorities for proofs of what an author advances, I have taken care to establish, in a few words, the most important of those principles of the law of nature which I intend to apply to nations. But I have not always thought it necessary to trace them to their primary foundations for the purpose of demonstration, but have sometimes contented myself with supporting them by common truths which are acknowledged by every candid reader, without carrying the analysis any farther. It is sufficient for me to persuade, and for this purpose to advance nothing as a principle that will not readily be admitted by every sensible man.

The law of nations is the law of sovereigns. It is principally for them, and for their ministers, that it ought to be written. All mankind are indeed interested in it; and, in a free country, the study of its maxims is a proper employment for every citizen; but it would be of little consequence to impart the knowledge of it only to private individuals, who are not called to the councils of nations, and who have no influence in directing the public measures. If the conductors of slates, if all those who are employed in public affairs, condescended to apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course, what happy effects might we not expect from a good treatise on the law of nations! We every day feel the advantages of a good body of laws in civil society: — the law of nations is, in point of importance, as much superior to the civil law, as the proceedings of nations and sovereigns are more momentous in their consequences than those of private persons.

But fatal experience too plainly proves how little regard those who are at the head of affairs pay to the dictates of justice, in conjunctures where they hope to find their advantage. Satisfied with bestowing their attention on a system of politics which is often false, since often unjust, the generality of them think they have done enough when they have thoroughly studied that. Nevertheless, we may truly apply to states a maxim which has long been acknowledged as true with respect to individuals, — that the best and safest policy is that which is founded on virtue. Cicero, as a great master in the art of government as in eloquence and philosophy, does not content himself with rejecting the vulgar maxim, that "a state cannot be happily governed without committing injustice;" he even proceeds so far as to lay down the very reverse of the proposition as an invariable truth, and maintains, that "without a strict attention to the most rigid justice, public affairs cannot be advantageously administered."15

Providence occasionally bestows on the world kings and ministers whose minds are impressed with this great truth. Let us not renounce the pleasing hope that the number of those wise conductors of nations will one day be multiplied; and in the interim let us, each in his own sphere, exert our best efforts to accelerate the happy period.

It is principally with a view of rendering my work palatable to those by whom it is of the most importance that it should be read and relished, that I have sometimes joined examples to the maxims I advance: and in that idea I have been confirmed by the approbation of one of those ministers who are the enlightened friends of the human race, and who alone ought to be admitted into the councils of kings. But I have been sparing in the use of such embellishments. Without ever aiming at a vain parade of erudition, I only sought to afford an occasional relaxation to the reader's mind, or to render the doctrine more impressive by an example, and sometimes to show that the practice of nations is conformable to the principles laid down: and, whenever I found a convenient opportunity, I have, above all things, endeavoured to inspire a love of virtue, by showing, from striking passage of history, how amiable it is, how worthy of our homage in some truly great men, and even productive of solid advantage. I have quoted the chief part of my examples from modern history, as well because these are more interesting, as to avoid a repetition of those which have been already accumulated by Grotius, Pufendorf, and their commentators.

As to the rest, I have, both in these examples and in my reasonings studiously endeavoured to avoid giving offence; it being my intention religiously to observe the respect due to nations and sovereign powers: but I have made it a still more sacred rule to respect the truth, and the interests of the human race. If among the base flatterers of despotic power, my principles meet with opponents, I shall have on my side the virtuous man, the friend of the laws, the man of probity, and the true citizen.

I should prefer the alternative of total silence, were I not at liberty in my writings to obey the dictates of my conscience. By my pen lies under no restraint, and I am incapable of prostituting it to flattery. I was born in a country of which liberty is the soul, the treasure, and the fundamental law; and my birth qualifies me to be the friend of all nations. These favourable circumstances have encouraged me in the attempt to render myself useful to mankind by this work. I felt conscious of my deficiency in knowledge and abilities: I saw that I was undertaking an arduous task; but I shall rest satisfied if that class of readers whose opinions are entitled to respect, discover in my labours the traces of the honest man and the good citizen.


[Notes to the Vattel Preface]

1. Neque vero hoc solum naturâ. Id est, jure gentium, &c. Cicero do Offic. lib. iii. c.5.

2. Jus naturale est, quod natura omnia animalia docuit. Instit. lib. i. tit. 2.

3. Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis, est, vocaturque jus civile, quasi jus proprium ipsius civitatis: quod vero naturalis ratio inter omnes homines constituit, id apud omnes perœque custoditur, vacaturque jus gentium, quasi quo jure omnes gentes utantur. Instit. lib. i. tit. ii. § 1.

4. Jus autem gentium omni humano generi commune est; nam usu exigente et humanis necessitatibus, gentes humanœ jura quædam sibi constituerunt. Bella etenim orta sunt, et captivitates secutæ et servitutes, quæ sunt naturali juri contrariæ. Jure enim naturali omnes homines ab initio liberi nascebantur Id. § 2.

5. Feciales, quod fidel publicæ inter populos prærant: nam per hos fiebat ut justum conciperetur bellum (et inde desitum), et ut foedere fides pacis cons tit ueretur. Ex his mittebant, antequam conciperetur, qui res repeterent: et per hos etiam nunc fit foedus. Varro de Ling. Lat. lib. iv.

6. De Jure Belli et Pacis, translated by Barbeyrac: Preliminary Discourse, § 41.

7. Rursus (lex) naturalis dividi potest in naturalem hominum. quæ sola obtinuit dici lex Naturæ, et naturalem civitatum, quæ dici potest Lex Gentium, vulgo autem Jus Gentium appellatur. Præcepta utriusque eadem sunt: sed quia civitates semel institutæ induunt proprietates hominum personales, lex quam, loquentes de hominum singulorum officio, naturalem dicimus, applicata totis civitatibus, nationibus, sive gentlbus, vocatur Jus Gentium, De Cive, c. xiv. § 4.

8. Pufendorf's Law of Nature and Nations, book ii. chap. iii. § 23.

9. Book i. chap. i. § 14, note 3.

10. In his Elementa Philos. Pract.

11. Note 2 on Pufendorf's Law of Nature and Nations, book ii. chap. 3, § 23. I have not been able to procure Budæus's work from which I suspect that Barbeyrac derived this idea of the Law of Nations.

12. If it were not more advisable for the sake of brevity, of avoiding repetitions, and taking advantage of the Ideas already formed and established in the minds of men, — if, for all these reasons. It were not more convenient to presuppose, in this instance, a knowledge of the ordinary law of nature, and on that ground to undertake the task of applying it to sovereign states, — it would, instead of speaking of such application, be more accurate to say, that, as the law of nature, properly so called, is the natural law of individuals and founded on the nature of man, so the natural law of nations is the natural law of political societies, and founded on the nature of those societies. But as the result of either mode is ultimately the same, I have, in preference, adopted the more compendious one. As the law of nature has already been treated of in an ample and satisfactory manner, the shortest way is simply to make a rational application of it to nations.

13. A nation here means a sovereign state, an independent political society.

14. In the VIIIth part of his Law of Nature, and in his Law of Nations.

15. Nihil est quod adhuc de republica putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse istud, sine injuria non posse; sed hoc verissimum, sine summa justicia remplubicam regi non posse. Cicero, Fragment, ex lib. de Republica.



The LAW OF NATIONS

Detailed Table of Contents

PRELIMINARIES.

Idea and General Principles of the Law of Nations.

1. What is meant by a nation or state.

2. It is a moral person.

3. Definition of the law of nations.

4. In what light nations or states are to be considered.

5. To what laws nations are subject.

6. In what the law of nations originally consists.

7. Definition of the necessary law of nations.

8. It is immutable.

9. Nations can make no change in it, nor dispense with the arising from it.

10. Society established by nature between all mankind.

11. And between all nations.

12. The object of this society of nations.

13. General obligation imposed by it.

14. Explanation of this observation.

15. The second general law is the liberty and independence of nations.

16. Effect of that liberty.

17. Distinctions between internal and external, perfect and imperfect obligations and rights.

18. Equality of nations.

19. Effect of that equality.

20. Each nation is mistress of her own actions, when they do not affect the perfect rights of others.

21. Foundation of the voluntary law of nations.

22. Right of nations against the infractors of the law of nations.

23. Measure of that right.

24. Conventional law of nations, or law of treaties.

25. Customary law of nations.

26. General rule respecting that law.

27. Positive law of nations.

28. General maxim respecting the use of the necessary and the voluntary law.


BOOK I.

OF NATIONS CONSIDERED IN THEMSELVES.

CHAP. I. Of Nations or Sovereign States.

1. Of the state, and of sovereignty.

2. Authority of the body politic over the members.

3. Of the several kinds of government.

4. What are sovereign states.

5. States bound by unequal alliance.

6. ——— or by treaties of protection.

7. Tributary states.

8. Feudatory states.

9. Two states subject to the same prince.

10. States forming a federal republic.

11. A state that has passed under the dominion of another.

12. Objects of this treatise.


CHAP. II. General Principles of the Duties of a Nation towards herself.

13. A nation ought to act agreeably to her nature.

14. Preservation and perfection of a nation.

15. End of civil society.

16. A nation is under an obligation to preserve herself.

17. ———— and to preserve her members.

18. A nation has a right to every thing necessary for her preservation.

19. She ought to avoid every thing that might occasion her destruction.

20. Her right to every thing that may promote this end.

21. A nation ought to perfect herself and her condition.

22. ———— and to avoid every thing contrary to her perfection.

23. The right she derives from these obligations.

24. Examples.

25. A nation ought to know herself.


CHAP. III. Of the Constitution of a State, and the Duties and rights of a Nation in that respect.

26. Of the public authority.

27. What is the constitution of a state.

28. The nation ought to choose the best constitution.

29. Political, fundamental, and civil laws.

30. Support of the constitution, and obedience to the laws.

31. Right of a nation with respect to her constitution and government.

32. She may reform the government.

33. ———— and may alter the constitution.

34. Of the legislative power, and whether it can alter the constitution.

35. The nation ought not to attempt it without great caution.

36. She is the judge of all disputes relative to the government.

37. No foreign power has a right to interfere.


CHAP. IV. Of the Sovereign, his Obligations, and his Rights.

38. Of the sovereign.

39. He is solely established for the safety and advantage of society.

40. His representative character.

41. He is intrusted with the obligations of the nation, and invested with her righbr.

42. His duty with respect to the preservation and perfection of the nation.

43. His rights in that respect.

44. He ought to know the nation.

45. Extent of his power: — prerogatives of majesty.

46. The prince is bound to respect and support the fundamental laws.

47. He may change the laws not fundamental.

48. He is bound to maintain and observe the existing laws.

49. In what sense he is subject to the laws.

50. His person is sacred and inviolable.

51. But the nation may repress a tyrant, and renounce her allegiance to him.

52. Arbitration between the king and his subjects.

53. Obedience which subjects owe to a sovereign.

54. In what cases they may resist him.

55. Ministers.


CHAP. V. Of States, Elective, Successive, or Hereditary and of those called Patrimonial

56. Elective states.

57. Whether elective kings be real sovereigns.

58. Successive and hereditary states: — origin of the right of succession.

59. Other origin of that right.

60. Other sources, which still amount to the same thing.

61. A nation may change the order of the succession.

62. Renunciations.

63. The order of succession ought commonly to be observed.

64. Regents.

65. Indivisibility of sovereignties.

66. Who are to decide disputes respecting the succession to a sovereignty.

67. The right of succession not to depend on the judgment of a foreign power.

68. States called patrimonial.

69. Every true sovereignty is unalienable.

70. Duty of a prince who is empowered to nominate his successor.

71. His nomination must be sanctioned by at least the tacit ratification of the people.


CHAP. VI. Principal Objects of a good Government; and first, to provide for the Necessities of the Nation.

The object of society points out the duties of the sovereign:

72. ——— he is bound to procure plenty.

73. ——— to take care that there be a sufficient number of workmen.

74. ——— to prevent the emigration of those that are useful.

75. Emissaries who entice them away.

76. Labour and industry must be encouraged.


CHAP. VII. Of the Cultivation of the Soil.

77. Utility of Agriculture.

    Regulations necessary in that respect:

78. ——— for the distribution of land.

79. ——— for the protection of husbandsmen.

80. Husbandry ought to be placed in an honourable light.

81. Cultivation of the soil a natural obligation.

82. Public granaries.


CHAP. VIII. Of Commerce.

83. Domestic and foreign trade.

84. Utility of domestic trade.

85. Utility of foreign trade.

86. Obligation to cultivate domestic trade.

87. Obligation to carry on foreign trade.

88. Foundation of the laws of commerce: — right of purchasing.

89. Right of selling.

90. Prohibition of foreign merchandises.

91. Nature of the right of purchasing.

92. Each nation to determine for herself how she will carry on commerce.

93. How A nation acquires a perfect right to a foreign trade.

94. Simple permission to carry on trade.

95. Whether commercial rights be subject to prescription.

96. Imprescriplibility of rights founded on treaty.

97. Monopolies, and trading companies with exclusive privileges.

98. Balance of trade, and attention of government in that respect.

99. Import duties.


CHAP. IX. Of the Care of the Public Ways; and of Tolls.

100. Utility of highways, canals, &c.

101. Duty of government in that respect.

102. Its right In that respect.

103. Foundation of the right to demand toll.

104. Abuse of that right.


CHAP. X. Of Money and Exchange.

105. Establishment of money.

106. Duty of the nation or prince with respect to the coin.

107. Their rights in that respect.

108. How one nation may injure another in the article of coin.

109. Exchange, and commercial laws.


CHAP. XI. Second Object of a good Government, — to procure the true Happiness of a Nation.

110. A nation is bound to labour after her own happiness.

111. Instruction.

112. Education of youth.

113. Arts and sciences.

114. Freedom of philosophical discussion.

115. Love of virtue, and abhorrence of vice, to be excited.

116. The nation may hence discover the intention other rulers.

117. The nation, or public person, bound to perfect her understanding and will.

118. ——— and to direct the knowledge and virtues of the citizens to the welfare of the society.

119. Love for their country.

120. ——— in individuals.

121. ——— in the nation or state itself, and in the sovereign.

122. Definition of the term "country".

123. How shameful and criminal to injure our country.

124. The glory of good citizens; — Examples.


CHAP. XII. Of Piety and Religion.

125. Piety.

126. It ought to be attended with knowledge.

127. Religion, internal and external.

128. Rights of individuals: — liberty of conscience.

129. Public establishment of religion: — rights and duties of the nation.

130. ——— when there is as yet no established religion.

131. ——— when there is an established religion.

132. Duties and rights of the sovereign with respect to religion.

133. ——— where there is an established religion.

134. Objects of his care, and the means he ought to employ.

135. Toleration.

136. How the prince is to act when the nation is resolved to change her religion.

137. Difference of religion does not deprive a prince of his crown.

138. Duties and rights of the sovereign reconciled with those of the subjects.

139. The sovereign ought to have the inspection of the affairs of religion, and authority over those who teach it.

140. He is bound to prevent the abuse of the established religion.

141. His authority over the ministers of religion.

142. Nature of that authority.

143. Rule to be observed with respect to ecclesiastics.

144. Recapitulation of the reasons which establish the sovereign's rights in mailers of religion, — Authorities and examples.

145. Pernicious consequences of the contrary opinion.

    Abuses particularized. —

146. 1. The popes.

147. 2. Important employments conferred by a foreign power

148. 3. Powerful subjects dependent on a foreign court.

149. 4. Celibacy of the priests: — Convents.

150. 5. Enormous pretensions of the clergy; — Pre-eminence.

151. 6. Independence, immunities.

152. 7. Immunity of church possessions.

153. 8. Excommunication of men in office.

154. 9. and of sovereigns themselves.

155. 10. The clergy drawing every thing to themselves, and interrupting the course of justice.

156. 11. Money drawn to Rome.

157. 12. Laws and customs inimical to the welfare of states.


CHAP. XIII. Of Justice and Polity.

158. A nation is bound to make justice flourish.

159. ——— to establish good laws.

160. ——— to enforce them.

161. Functions and duties of the prince in that respect.

162. How he is to dispense justice.

163. His duty to appoint upright and enlightened judges.

164. The ordinary courts should determine causes relating to the revenue.

165. Necessary to establish supreme courts, from whose sentence there shall be no appeal.

166. The prince bound to observe the forms of justice.

167. —— to support the authority of the judges, and enforce their decrees.

168. Distributive justice: — distribution of employments and rewards.

169. Punishment of transgressors; — foundation of the right of punishing.

170. Criminal laws.

171. Degree of punishment.

172. Execution of the laws.

173. Right of pardoning.

174. Internal police.

175. Duel or single combat.

176. Means of putting a slop to that disorder.


CHAP. XIV. Third Object of a good Government, — to fortify itself against External Attacks.

177. A nation ought to fortify herself against external attacks.

178. National strength.

179. Increase of population.

180. Valour.

181. Other military virtues.

182. Riches.

183. Public revenues and taxes.

184. The nation ought not to increase her power by unlawful means.

185. Power is but relative.


CHAP. XV. Of the Glory of a Nation.

186. Advantages of glory.

187. Duly of the nation. — How true glory is acquired.

188. Duty of the prince.

189. Duty of the citizens.

190. Example of the Swiss.

191. Attacking the glory of a nation is doing her an injury.


CHAP. XVI. Protection sought by a Nation, and her voluntary submission to a Foreign Power.

192. Protection.

193. Voluntary submission of one nation to another.

194. Several kinds of submission.

195. Right of the citizens when the nation submits to a foreign power.

196. These compacts annulled by the failure of protection.

197. ——— or by the infidelity of the party protected.

198. ——— and by the encroachments of the protector.

199. How the right of the nation protected is lost by her silence.


CHAP. XVII. How a Nation may separate herself from the State of which she is a Member, and renounce her Allegiance to her Sovereign when she is not protected.

200. Difference between the present case and those in the proceeding chapter.

201. Duty of the members of a state, or subjects of a prince who are in danger.

202. Their right when they are abandoned.


CHAP. XVIII. Establishment of a Nation in a Country

203. Possession of a country by a nation.

204. Her right over the part in her possession.

205. Acquisition of the sovereignly in a vacant country.

206. Another manner of acquiring the empire in a free country.

207. How a nation acquires the property of a desert country.

208. A question on this subject.

209. Whether it be lawful to take possession of part of a country inhabited only by a few wandering tribes.

210. Colonies.

211. What is our country.

212. Citizens and natives.

213. Inhabitants.

214. Naturalization.

215. Citizens' children born in a foreign country.

216. Children born at sea.

217. Children born in the armies of the state, or in the house of its minister at a foreign court.

218. Settlement.

219. Vagrants.

220. Whether a person may quit his country.

221. How a person may absent himself for a time.

222. Variation of the political laws in that respect: — they must be obeyed.

223. Cases in which a citizen has a right to quit his country.

224. Emigrants.

225. Sources of their right.

226. If the sovereign infringes their right, he injures them.

227. Supplicants.

228. Exile and banishment.

229. The exile and the banished man have a right to live somewhere.

230. Nature of that right.

231. Duly of nations towards them.

232. A nation cannot punish them for faults committed out of her territories.

233. ——— except such as affect the common safety of mankind.


CHAP. XX. Public, Common, and Private Property.

234. What the Romans called res communes.

235. Aggregate wealth of a nation, and its divisions.

236. Two modes of acquiring public properly.

237. The income of the public property is naturally at the sovereign's disposal.

238. The nation may grant him the use and properly of her common possessions.

239. ——— or allow him the domain, and reserve to herself the use of them.

240. Taxes.

241. The nation may reserve to herself the right of imposing them.

242. Sovereign possessing that power.

243. Duties of the prince with respect to taxes.

244. Eminent domain annexed to the sovereignty.

245. Dominion over public property.

246. The sovereign may make laws respecting the use of things possessed in common.

247. Alienation of the property of a corporation.

248. Use of common property.

249. How each member is to enjoy it.

250. Right of anticipation in the use of it.

251. The same right in another case.

252. Preservation and repairs of common possessions.

253. Duty and right of the sovereign in that respect.

254. Private property.

255. The sovereign may subject it to regulations of police.

256. Inheritances.


CHAP. XXI. Of the Alienation of the Public Properly, or the Domain, and that of a Part of the State.

257. The nation may alienate her public property.

258. Duties of the nation in that respect.

259. Duties of the prince.

260. He cannot alienate the public property.

261. The nation may give him a right to do it.

262. Rules on that subject with respect to treaties between nation and nation.

263. Alienation of a part of the state.

264. Rights of the dismembered party.

265. Whether the prince has power to dismember the state.


CHAP. XXII. Of Rivers, Streams, and Lakes.

266. A river that separates two territories.

267. Bed of a river which is dried up or takes another course.

268. Right of alluvion.

269. Whether alluvion produces any change in the right to a river.

270. Consequence of a river changing its bed.

271. Works tending to turn the current.

272. ——— or generally prejudicial to the rights of others.

273. Rules relative to interfering rights.

274. Lakes.

275. Increase of a lake.

276. Land formed on the banks of a lake.

277. Bed of a lake dried up.

278. Jurisdiction over lakes and rivers.


CHAP. XXIII. Of the Sea.

279. The sea, and its use.

280. Whether the sea can be possessed, and its dominion appropriated.

281. Nobody has a right to appropriate to himself the use of the open sea.

282. A nation attempting to exclude another does her an injury.

283. She even does an injury to all nations.

284. She may acquire an exclusive right by treaties.

285. —— but not by prescription and long use.

286. —— unless by virtue of a tacit agreement.

287. The sea near the coasts may become properly.

288. Another reason for appropriating the sea bordering on coasts.

289. How far that possession may extend.

290. Shores and ports.

291. bays and straits.

292. Straits in particular.

293. Right to wrecks.

294. A sea inclosed within the territories of a nation.

295. The parts of the sea possessed by a sovereign are within his jurisdiction.


BOOK II.

OF A NATION CONSIDERED IN HER RELATION TO OTHER STATES


CHAP. I. Of the common Duties of a Nation towards other States, or the Offices of Humanity between Nations.

1. Foundation of the common and mutual duties of nations.

2. Offices of humanity, and their foundation.

3. General principles of all the mutual duties of nations.

4. Duties of a nation for the preservation of others.

5. She is bound to assist a nation afflicted with famine or any other calamity.

6. She is bound to contribute to the perfection of other states.

7. ———but not by force.

8. The right to require the offices of humanity.

9. The right of judging whether they are to be granted.

10. A nation is not to compel another to perform those offices of which the refusal is no wrong.

11. Mutual love of nations.

12. Each nation is bound to cultivate the friendship of others.

13. ——— to perfect herself, with the view to the advantage of others, and to set them good examples.

14. ——— to take care of their glory.

15. Difference of religion ought not to preclude the offices of humanity.

16. Rule and measure of the offices of humanity.

17. Particular limitation with respect to the prince.

18. No nation ought to injure others.

19. Offences.

20. Bad custom of the ancients.


CHAP. II. Of the Mutual Commerce between Nations.

21. General obligation of nations to carry on mutual commerce.

22. They are bound to favour trade.

23. Freedom of trade.

24. Right of trading belonging to nations.

25. Bach nation is sole judge of the propriety of commerce on her own part.

26. Necessity of commercial treaties.

27. General rule concerning those treaties.

28. Duty of nations in making such treaties.

29. Perpetual or temporary treaties, or treaties revocable at pleasure.

30. Nothing contrary to the tenor of a treaty can be granted to a third party.

31. How far lawful to give up by treaty the liberty of trading with other nations.

32. A nation may restrict her commerce in favour of another nation.

33. A nation may appropriate to herself a particular branch of trade.

34. Consuls.


CHAP. III. Of the Dignity and Equality of Nations, — of Titles, — and other Marks of Honour.

35. Dignity of nations or sovereign states.

36. Their equality.

37. Precedency.

38. The form of government is foreign to this question.

39. A state ought to retain her rank, notwithstanding any changes in the form of her government.

40. Treaties and established customs are to be observed in that respect.

41. Name and honours given by the nation to her conductor.

42. Whether a sovereign may assume what title and honours he pleases.

43. Right of other nations in that respect.

44. Their duty.

45. How titles and honours may be secured.

46. We must conform to general custom.

47. Mutual respect due by sovereigns to each other.

48. How a sovereign ought to maintain his dignity.


CHAP. IV. Of the Right to Security, and the Effects of the Sovereignty and Independence of Nations.

49. Right to security.

50. It produces the right of resistance.

51. ——— and that of obtaining reparation.

52. ——— and the right of punishing.

53. Right of all nations against a mischievous people.

54. No nation has a right to interfere in the government of another state.

55. One sovereign cannot make himself judge of the conduct of another.

56. How far lawful to interfere in a quarrel between a sovereign and his subjects.

57. Right of opposing the interference of foreign powers in the affairs of government.

58. The same right with respect to religion.

59. No nation can be constrained in religious concerns.

60. Offices of humanity in these matters: — missionaries.

61. Circumspection to be used.

62. What a sovereign may do in favour of those who profess his religion in another state.


CHAP. V. Of the Observance of Justice between Nations.

63. Necessity of the observance of justice in human society.

64. Obligation of all nations to cultivate and observe justice.

65. Right of refusing to submit to injustice.

66. This right is a perfect one.

67. It produces — the right of self-defence.

68. ——— the right of doing ourselves justice.

69. The right of punishing injustice.

70. Right of all nations against one that openly despises justice


CHAP. VI. Of the concern a Nation may have in the Actions of her Citizens.

71. The sovereign is bound to avenge the wrongs of the state and to protect the citizens.

72. He must not suffer his subject to offend other nations or their citizens.

73. The ads of individuals not imputable to the nation.

74. ——— unless she approve or ratify them.

75. Conduct to be pursued by the offended party.

76. Duty of the aggressor's sovereign.

77. If he refuses justice, he becomes a party in the fault and offence.

78. Another case in which the nation is guilty of the crimes of the citizens.


CHAP. VII. Effects of the Domain, between Nations.

79. General effects of the domain.

80. What is comprehended in the domain of a nation.

81. The property of the citizens is the national property with respect to foreign states.

82. A consequence of that principle.

83. Connection of the domain of the nation with the sovereignty.

84. Jurisdiction.

85. Effects of the Jurisdiction in foreign countries.

86. Desert and uncultivated places.

87. Duty of the nation in that respect.

88. Right of possessing things that have no owner.

89. Rights granted to another nation.

90. Not allowable to expel a nation from the country she inhabits.

91. ——— nor to extend by violence the bounds of empire.

92. the limits of territories ought to be carefully ascertained.

93. Violation of territory.

94. Prohibition to enter the territory.

95. A country possessed by several nations at the same time.

96. A country possessed by a private person.

97. Independent families in a country.

98. Possessions of certain places only, or of certain rights, in a vacant country.


CHAP. VIII. Rules respecting Foreigners.

99. General idea of the conduct a state ought to observe toward foreigners.

100. Entering the territory.

101. Foreigners are subject to the laws.

102. ——— and punishable according to the laws.

103. Who is the judge of their disputes.

104. Protection due to foreigners.

105. Their duties.

106. To what burthens they are subject.

107. Foreigners continue members of their own nation.

108. The state has no right over the person of a foreigner.

109. ——— nor over his property.

110. Who are the heirs of a foreigner.

111. Will of a foreigner.

112. Escheatage.

113. The right of traite foraine.

114. Immovable property possessed by an alien.

115. Marriages of aliens.


CHAP. IX. Of the Rights retained by all Nations after the Introduction of Domain and Property.

116. What are the rights of which men cannot be deprived.

117. Rights still remaining from the primitive state of communion.

118. Right retained by each nation over the property of others.

119. Right of necessity.

120. Right of procuring provision by force.

121. Right of making use of things belonging to others.

122. Right of carrying off women.

123. Right of passage.

124. ——— and of procuring necessaries.

125. Right of dwelling in a foreign country.

126. Things, of which the use is inexhaustible.

127. Right of innocent use.

128. Nature of that right in general.

129. ——— and in cases not doubtful.

130. Exercise of that right between nations.


CHAP. X. How a Nation is to use her Right of Domain, in order to discharge her Duties towards other Nations, with respect to the Innocent Use of Things.

131. General duty of the proprietor.

132. Innocent passage.

133. Securities may be required.

134. Passage of merchandise.

135. Residence in the country.

136. How we are to act towards foreigners who desire a perpetual residence.

137. Right accruing from a general permission.

138. A right granted as a favour.

139. The nation ought to be courteous.


CHAP. XI. Of Usucaption and Prescription between Nations.

140. Definition of usucaption and prescription.

141. Usucaption and prescription derived from the law of nature.

142. What foundation is required for ordinary prescription.

143. Immemorial prescription.

144. Claimant alleging reasons for his silence.

145. Proprietor sufficiently showing that he does not mean to abandon his right.

146. Prescription founded on the actions of the proprietor.

147. Usucaption and prescription take place between nations.

148. More difficult, between nations, to found them on a presumptive desertion.

149. Other principles that enforce prescription.

150. Effects of the voluntary law of nations on this subject.

151. Law of treaties, or custom, in this matter.


CHAP. XII. Of Treaties of Alliance and other Public Treaties.

152. Nature of treaties.

153. Compacts, agreements, or conventions.

154. By whom treaties are made.

155. Whether a state under protection may make treaties.

156. Treaties concluded by proxies or plenipotentiaries.

157. Validity of treaties.

158. Injury does not render them void.

159. Duly of nations in that respect.

160. Nullity of treaties which are pernicious to the state.

161. Nullity of treaties made for an unjust or dishonest purpose.

162. Whether an alliance may be contracted with those who do not profess the true religion.

163. Obligation to observe treaties.

164. The violation of a treaty is an act of injustice.

165. Treaties cannot be made contrary to those already existing.

166. How treaties may be concluded with several nations with the same view.

167. The more ancient ally entitled to a preference.

168. We owe no assistance in an unjust war.

169. General division of treaties; — those that relate to things already due by the law of nature.

170. Collision of those treaties with the duties we owe to ourselves.

171. Treaties in which we barely promise to do no injury.

172. Treaties concerning things that are not naturally due: — equal treaties.

173. Obligation to preserve equality in treaties.

174. Difference between equal treaties and equal alliances.

175. Unequal treaties, and unequal alliances.

176. An alliance with diminution of sovereignty may annul preceding treaties.

177. We ought, as much as possible, to avoid making unequal alliances.

178. Mutual duties of nations with respect to unequal alliances.

179. ——— in alliances where the inequality is on the side of the more powerful party.

180. How inequality of treaties and alliances may be conformable to the law of nature.

181. Inequality imposed by way of punishment.

182. Other kinds, of which we have spoken elsewhere.

183. Personal and real treaties.

184. Naming the contracting parties in the treaty does not render it personal.

185. An alliance made by a republic is real.

186. Treaties concluded by kings or other monarchs.

187. Perpetual treaties, and those for a certain time.

188. Treaties made for the king and his successors.

189. Treaties made for the good of the kingdom.

190. How presumption ought to be founded in doubtful cases.

191. The obligations and rights resulting from a real treaty pass to the successors.

192. Treaties accomplished once for all, and perfected.

193. Treaties already accomplished on the one part.

194. The personal alliance expires if one of the parties ceases to reign.

195. Treaties in their own nature personal.

196. Alliance concluded for the defence of the king and royal family.

197. Obligation of a real alliance, when the allied king is deposed.


CHAP. XIII. Of the Dissolution and Renewal of Treaties.

198. Expiration of alliances made for a limited time.

199. Renewal of treaties.

200. How a treaty is dissolved, when violated by one of the contracting parties.

201. The violation of one treaty does not cancel another.

202. The violation of one article in a treaty may cancel the whole.

203. The treaty is void by the destruction of one of the contracting powers.

204. Alliances of a state that has afterwards put herself under the protection of another.

205. Treaties dissolved by mutual consent.


CHAP. XIV. Of other public Conventions, — of those that are made by Subordinate Powers, — particularly of the Agreement called in Latin, Sponsio, — and of Conventions between the Sovereign and Private Persons.

206. Conventions made by sovereigns.

207. Those made by subordinate powers.

208. Treaties concluded by a public person, without orders from the sovereign, or without sufficient powers.

209. The agreement called sponsio.

210. The state is not bound by such an agreement.

211. To what the promiser is bound when it is disavowed.

212. To what the sovereign is bound.

213. Private contracts of the sovereign.

214. Contracts made by him with private persons, in the name of the state.

215. They are binding on the nation, and on his successors.

216. Debts of the sovereign and the state.

217. Donations of the sovereign.


CHAP. XV. Of the Faith of Treaties.

218. What is sacred among nations.

219. Treaties sacred between nations.

220. The faith of treaties is sacred.

221. He who violates his treaties, violates the law of nations.

222. Right of nations against him who disregards the faith of treaties.

223. The law of nations violated by the popes.

224. This abuse authorized by princes.

225. Use of an oath in treaties. — It does not constitute the obligation.

226. It does not change the nature of obligations.

227. It gives no pre-eminence to one treaty above another.

228. It cannot give force to a treaty that is invalid.

229. Asseverations.

230. The faith of treaties does not depend on the difference of religion.

231. Precaution to be taken in wording treaties.

232. Subterfuges in treaties.

233. An evidently false interpretation inconsistent with the faith of treaties.

234. Faith tacitly pledged.


CHAP. XVI. Of Securities given for the Observance of Treaties.

235. Guaranty.

236. It gives the guarantee no right to interfere unasked in the execution of a treaty.

237. Nature of the obligation it imposes.

238. The guaranty cannot impair the rights of a third parly.

239. The duration of the guaranty.

240. Treaties with surety.

241. Pawns, securities, and mortgages.

242. A nation's right over what she holds as a pledge.

243. How she is obliged to restore it.

244. How she may appropriate it to herself.

245. Hostages.

246. What right we have over hostages.

247. Their liberty alone is pledged.

248. When they are to be sent back.

249. Whether they may be detained on any other account.

250. They may be detained for their own actions.

251. Of the support of hostages.

252. A subject cannot refuse to be a hostage.

253. Rank of the hostages.

254. They ought not to make their escape.

255. Whether a hostage who dies is to be replaced.

256. Substitute for a hostage.

257. Hostage succeeding to the crown.

258. The liability of the hostage ends with the treaty.

259. The violation of the treaty is an injury done to the hostages

260. The fate of the hostage when he who has given him fails in his engagements.

261. Right founded on custom.


CHAP. XVII. Of the Interpretation of Treaties.

262. Necessity of establishing rules of interpretation.

263. First general maxim — it is not allowable to interpret what has no need of interpretation.

264. Second general maxim — if he who could and ought to have explained himself, has not done it, it is to his own detriment.

265. Third general maxim — neither of the contracting parties has a right to interpret the treaty according to his own fancy.

266. Fourth general maxim — what is sufficiently declared is to be taken for true.

267. We ought to attend rather to the words of the person promising, than to those of the party stipulating.

268. Fifth general maxim — the interpretation ought to be made according to certain rules.

269. The faith of treaties imposes an obligation to follow those rules.

270. General rule of interpretation.

271. The terms are to be explained conformably to common usage.

272. Interpretation of ancient treaties.

273. Quibbles on words.

274. A rule on that subject.

275. Mental reservations.

276. Interpretation of technical terms.

277. Terms whose signification admits of degrees.

278. Figurative expressions.

279. Equivocal expressions.

280. The rule for these two cases.

281. Not necessary to give a term the same sense everywhere in the same deed.

282. We ought to reject every interpretation which leads to an absurdity.

283. ——— or which renders the act null and void of effect.

284. Obscure expressions interpreted by others more clear in the same author.

285. Interpretation founded on the connection of the discourse.

286. Interpretation drawn from the connection and relation of the things themselves.

287. Interpretation founded on the reason of the deed.

288. Where many reasons have concurred to determine the will.

289. What constitutes a sufficient reason for an act of the will.

290. Extensive interpretation founded on the reason of the act.

291. Frauds tending to elude laws or promises.

292. Restrictive interpretation.

293. Us use, in order to avoid falling into absurdities, or into what is unlawful.

294. —— or what is too severe and burthensome.

295. How it ought to restrict the signification agreeably to the subject.

296. How a change happening in the state of things may form an exception.

297. Interpretation of a deed in unforeseen cases.

298. Reasons arising from the possibility, and not the existence of a thing.

299. Expressions susceptible of an extensive and a limited sense.

300. Things favourable, and things odious.

301. What tends to the common advantage, and to equality, is favourable: the contrary is odious.

302. What is useful to human society, is favourable: the contrary is odious.

303. Whatever contains a penalty is odious.

304. Whatever renders a deed void is odious.

305. Whatever tends to change the present state of things, is odious, the contrary is favourable.

306. Things of a mixed nature.

307. Interpretation of favourable things.

308. Interpretation of odious things.

309. Examples.

310. How we ought to interpret deeds of pure liberality.

311. Collison of laws or treaties.

312. First rule in cases of collison.

313. Second rule.

314. Third rule.

315. Fourth rule.

316. Fifth rule.

317. Sixth rule.

318. Seventh rule.

319. Eighth rule.

320. Ninth rule.

321. Tenth rule.

322. General remark on the manner of observing all the preceding rules.


CHAP. XVIII. Of the Mode of Terminating Deputes between Nations.

323. General direction on this subject.

324. Every nation is bound to give satisfaction respecting the just complaints of another.

325. How nations may abandon their rights and just complaints.

326. Means suggested by the law of nature for terminating their disputes: amicable accommodation.

327. Compromise.

328. Mediation.

329. Arbitration.

330. Conferences and congresses.

331. Distinction to be made between evident and doubtful cases.

332. Essential rights, and those of less importance.

333. How we acquire a right of recurring to force in a doubtful case.

334. ——— and even without attempting other measures.

335. Voluntary law of nations on that subject.

336. Equitable conditions to be offered.

337. Possessor's right in doubtful cases.

338. How reparation of an injury is to be sought.

339. Retaliation.

340. Various modes of punishing, without having recourse to arms.

341. Retortion.

342. Reprisals.

343. What is required to render them lawful.

344. Upon what effects reprisals are made.

345. The state is bound to compensate those who suffer by reprisals.

346. The sovereign alone can order reprisals.

347. Reprisals against a nation for actions of her subjects, and in favour of the injured subjects.

348. ———— but not in favour of foreigners.

349. Those who have given cause for reprisals are bound to indemnify those who suffer by them.

350. What may be deemed a refusal to do justice.

351. Subjects arrested by way of reprisals.

352. Our right against those who oppose reprisals.

353. Just reprisals do not afford a just cause for war.

354. How we ought to confine ourselves to reprisals, or at length proceed to hostilities.


BOOK III.

OF WAR.


CHAP. I. Of War, — its different Kinds, — and the Right of making War.

1. Definition of war.

2. Public war.

3. Right of making war.

4. It belongs only to the sovereign power.

5. Defensive and offensive war.


CHAP. II. Of the Instruments of War, — the Raising of Troops, &c. — their Commanders, or the Subordinate Powers in War.

6. Instruments of war.

7. Right of levying troops.

8. Obligation of the citizens or subjects.

9. Enlisting or raising of troops.

10. Whether there be any exemptions from carrying arms.

11. Soldiers' pay and quarters.

12. Hospitals for invalids.

13. Mercenary soldiers.

14. Rule to be observed in their enlistment.

15. Enlisting in foreign countries.

16. Obligation of Soldiers.

17. Military laws.

18. Military discipline.

19. Subordinate powers in war.

20. How their promises bind the sovereign.

21. In what cases their promises bind only themselves.

22. Their assumption of an authority which they do not possess.

23. How they bind their inferiors.


CHAP. III. Of the Just Causes of War.

24. War never to be undertaken without very cogent reasons.

25. Justificatory reasons, and motives for making war.

26. What is in general a just cause of war.

27. What war is unjust.

28. The object of war.

29. But justificatory reasons and proper motives requisite in undertaking a war.

30. Proper motives — vicious motives.

31. War undertaken upon just grounds, but from vicious motives.

32. Pretexts.

33. War undertaken merely for advantage.

34. Nations who make war without reason or apparent motives.

35. How defensive war is just or unjust.

36. How it may become just against an offensive war which was originally just.

37. How an offensive war is just in an evident cause.

38. ——— in a doubtful cause.

39. War cannot be just on both sides.

40. Sometimes reputed lawful.

41. War undertaken to punish a nation.

42. Whether the aggrandizement of a neighbouring power can authorize a war against him.

43. Alone, and of itself, it cannot give a right to attack him.

44. How the appearances of danger give that right.

45. Another case more evident.

46. Other allowable means of defence against a formidable power.

47. Political equilibrium.

48. Ways of maintaining it.

49. How he that destroys the equilibrium may be restrained or even weakened.

50. Behaviour allowable towards a neighbour preparing for war.


CHAP. IV. Of the Declaration of War, — and of War in due Form.

51. Declaration of war: — necessity thereof.

52. What it is to contain.

53. It is simple or conditional.

54. The right to make war ceases on the offer of equitable conditions.

55. Formalities of a declaration of war.

56. Other reasons for the necessity of its publication.

57. Defensive war requires no declaration.

58. When it may be omitted in an offensive war.

59. It is not to be omitted by way of retaliation.

60. Time of the declaration.

61. Duty of the inhabitants on a foreign army's entering a country before a declaration of war.

62. Commencement of hostilities.

63. Conduct to be observed towards the enemy's subjects who are in the country at the time of the declaration of war.

64. Publication of the war, and manifestoes.

65. Decorum and moderation to be observed in the manifestoes.

66. What is a lawful war in due form.

67. It is to be distinguished from informal and unlawful war.

68. Grounds of this distinction.


CHAP. V. Of the Enemy, and of Things belonging to the Enemy.

69. Who is an enemy.

70. All the subjects of the two states at war are enemies.

71. ——— and continue to be enemies in all places.

72. Whether women and children are to be accounted enemies

73. Things belonging to an enemy.

74. ——— continue such everywhere.

75. Neutral things found with an enemy.

76. Lands possessed by foreigners in an enemy's country.

77. Things due to the enemy by a third party.


CHAP. VI. Of the Enemy's Allies, — of Warlike Associations, — of Auxiliaries and Subsidies.

78. Treaties relative to war.

79. Defensive and offensive alliances.

80. Difference between warlike alliances and defensive treaties.

81. Auxiliary troops.

82. Subsidies.

83. When a nation is authorized to assist another.

84. ——— and to make alliances for war.

85. Alliances made with a nation actually engaged in war.

86. Tacit clause in every warlike alliance.

87. To refuse succours for an unjust war is no breach of alliance.

88. What the casus fœderis is.

89. It never takes place in an unjust war.

90. How it exists in a defensive war.

91. ——— and in a treaty of a guaranty.

92. The succour is not due under an inability to furnish it, or when the public safety would be exposed.

93. Other cases: — two of the parties in an alliance coming to a rupture.

94. Refusal of the succours due in virtue of an alliance.

95. The enemy's associates.

96. Those who make a common cause with the enemy are his associates.

97. ——— and those who assist him, without being obliged to it by treaties.

98. ——— or who are in an offensive alliance with him.

99. How a defensive alliance associates with the enemy.

100. Another case.

101. In what case it does not produce the same effect.

102. Whether it be necessary to declare war against the enemy's associates.


CHAP. VII. Of Neutrality, — and the Passage of Troops through a Neutral Country.

103. Neutral nations.

104. Conduct to be pursued by a neutral nation.

105. Anally may furnish the succour due from him, and remain neuter.

106. Right of remaining neuter.

107. Treaties of neutrality.

108. Additional reasons for making those treaties.

109. Foundation of the rules of neutrality.

130. How levies may be allowed, money lent, and every kind of things sold, without a breach of neutrality.

111. Trade of neutral nations with those which are at war.

112. Contraband goods.

113. Whether such goods may be confiscated.

114. Searching neutral ships.

115. Enemy's property on board a neutral ship.

116. Neutral property on board an enemy's ship.

117. Trade with a besieged town.

118. Impartial offices of neutrals.

119. Passage of troops through a neutral country.

120. Passage to be asked.

121. It may be refused for good reasons.

122. In what case it may be forced.

123. The fear of danger authorizes a refusal.

124. ——— or a demand of every reasonable security.

125. Whether always necessary to give every kind of security required.

126. Equality to be observed towards both parties, as to the passage.

127. No complaint lies against a neutral state for granting passage.

128. That state may refuse it from fear of the resentment of the opposite party.

129. ———— and lest her country should become the theatre of war.

130. What is included in the grant of passage.

131. Safely of the passage.

132. No hostility to be committed in a neutral country.

133. Neutral country not to afford a retreat to troops, that they may again attack their enemies.

134. Conduct to be pursued by troops passing through a neutral country.

135. A passage may be refused for a war evidently unjust.


CHAP. VIII. Of the Rights of Nations in War, — and first, of what we have a Right to do and what we are allowed to do, to the Enemy's Person in a just War.

136. General principle of the rights against an enemy in a just war.

137. Difference between what we have a right to do, and what is barely allowed to be done with impunity between enemies.

138. The right to weaken an enemy by every justifiable method.

139. The right over the enemy's person.

140. Limits of that right: — an enemy not to be killed after ceasing to resist.

141. A particular case in which quarter may be refused.

142. Reprisals.

143. Whether a governor of a town can be punished with death for an obstinate defence.

144. Fugitives and deserters.

145. Women, children, the aged, and sick.

146. Clergy, men of letters, &c.

147. Peasants, and, in general, all who do not carry arms.

148. The right of making prisoners of war.

149. A prisoner of war not to be put to death.

150. How prisoners of war are to be treated.

151. Whether prisoners, who cannot be kept or fed, may be put to death.

152. Whether prisoners of war may be made slaves.

153. Exchange and ransom of prisoners.

154. The state is bound to procure their release.

155. Whether an enemy may lawfully be assassinated or poisoned.

156. Whether poisoned weapons may be used in war.

157. Whether springs may be poisoned.

158. Disposition to be entertained towards an enemy.

159. Tenderness for the person of a king who is in arms against us.


CHAP. IX. Of the Right of War, with Respect to Things belonging to the Enemy.

160. Principles of the right over things belonging to the enemy.

161. The right of seizing them.

162. What is taken from the enemy by way of penalty.

163. What is withheld from him, in order to oblige him to give just satisfaction.

164. Booty.

165. Contribution.

166. Waste and destruction.

167. Ravaging and burning.

168. What things are to be spared.

169. Bombarding towns.

170. Demolition of fortresses.

171. Safeguards.

172. General rule of moderation respecting the evil which may be done to an enemy.

173. Rule of the voluntary law of nations on the same subject.


CHAP. X. Of Faith between Enemies, — of Stratagems, Artifices in War, Spies, and some other Practices.

174. Faith to be sacred between enemies.

175. What treaties are to be observed between enemies.

176. On what occasions they may be broken.

177. Lies.

178. Stratagems and artifices in war.

179. Spies.

180. Clandestine seduction of the enemy's people.

181. Whether the offers of a traitor may be accepted.

182. Deceitful intelligence.


CHAP. XI. Of the Sovereign who wages an unjust war.

183. An unjust war gives no right whatever.

184. Great guilt of the sovereign who undertakes it.

185. His obligations.

166. Difficulty of repairing the injury he has done.

186. Whether the nation and the military are bound to anything.


CHAP. XII. Of the Voluntary Law of Nations, as it regards the Effects of Regular Warfare, independently of the Justice of the Cause.

188. Nations not rigidly to enforce the law of nature against each other.

189. Why they are bound to admit the voluntary law of nations

190. Regular war, as to its effects, is to be accounted just on both sides.

191. Whatever is permitted to one party, is so to the other.

192. The voluntary law gives no more than impunity to him who wages an unjust war.


CHAP. XIII. Of Acquisitions by War, and particularly of Conquests.

193. War a mode of acquisition.

194. Measure of the right it gives.

195. Rules of the voluntary law of nations.

196. Acquisition of movable property.

197. Acquisition of immovables, — or conquest.

198. How to transfer them validly.

199. Conditions on which a conquered town is acquired.

200. Lands of private persons.

201. Conquest of the whole state.

202. To whom the conquest belongs.

203. Whether we are to set at liberty a people whom the enemy had unjustly conquered.


CHAP. XIV. Of the Right of Postliminium.

204. Definition of the right of postliminium.

205. Foundation of that right.

206. How it takes effect.

207. Whether it takes effect among the allies.

208. Of no validity in neutral nations.

209. What things are recoverable by that right.

210. Of those who cannot return by the right of postliminium.

211. They enjoy that right when retaken.

212. Whether that right extends to their properly alienated by the enemy.

213. Whether a nation that has been entirely subdued can enjoy the right of postliminium.

214. Right of postliminium for what is restored at the peace.

215. ———and for things ceded to the enemy.

216. The right of postliminium does not exist after a peace.

217. Why always in force for prisoners.

218. They are free even by escaping into a neutral country.

219. How the rights and obligations of prisoners subsist.

220. Testament of a prisoner of war.

221. Marriage.

222. Regulations established by treaty or custom, respecting postliminium.


CHAP. XV. Of the Right of Private Persons in War.

223. Subjects cannot commit hostilities without the sovereign's order.

224. That order may be general or particular.

225. Source of the necessity of such an order.

226. Why the law of nations should have adopted this rule.

227. Precise meaning of the order.

228. What may be undertaken by private persons, presuming on the sovereign's will.

229. Privateers.

230. Volunteers.

231. What soldiers and subalterns may do.

232. Whether the state is bound to indemnify the subjects for damages sustained in war.


CHAP. XVI. Of various Conventions made during the Course of the War.

233. Truce and suspension of arms.

234. ——— does not terminate the war.

235. A truce is either partial or general.

236. General truce for many years.

237. By whom those agreements may be concluded.

238. The sovereign's faith engaged in them.

239. When the truce begins to be obligatory.

240. Publication of the truce.

241. Subjects contravening the truce.

242. Violation of the truce.

243. Stipulation of a penalty against the infractor.

244. Time of the truce.

245. Effects of a truce: what is allowed or not, during its continuance. — First rule — Each party may do at home what they have a right to do in time of peace.

246. Second rule — not to lake advantage of the truce in doing what hostilities would have prevented.

247. ——— for instance, continuing the works of a siege, or repairing breaches.

248. ———— or introducing succours.

249. Distinction of a particular case.

250. Retreat of an army during a suspension of hostilities.

251. Third rule — Nothing to be attempted in contested places, but every thing to be left as it was.

252. Places quitted or neglected by the enemy.

253. Subjects inclined to revolt against their prince not to be received during the truce.

254. ——— much less to be solicited to treason.

255. Persons or effects of enemies not to be seized during the truce.

256. Right of postliminium during the truce.

257. Intercourse allowed during a truce.

258. Persons detained by unsurmountable obstacles after the expiration of the truce.

259. Particular conditions added to truces.

260. At the expiration of the truce the war recommences without any new declaration.

261. Capitulations; and by whom they may be concluded.

262. Clauses contained in them.

263. Observance of capitulations, and its utility.

264. Promises made to the enemy by individuals.


CHAP. XVII. Of Safe-conducts and Passports, and Questions on the Ransom of Prisoners of War.

265. Nature of safe-conducts and passports.

266. From what authority they emanate.

267. Not transferable from one person to another.

268. Extent of the promised security.

269. How to judge of the right derived from a safe conduct.

270. Whether it includes baggage and domestics.

271. Safe conduct granted to the father does not include his family.

272. Safe conduct given in general to any one and his retinue.

273. Term of the safe conduct.

274. A person unavoidably detained beyond the term.

275. The safe conduct does not expire at the death of him who gave it.

276. How it may be revoked.

277. Safe conduct, with the clause "for such time as we shall think fit".

278. Conventions relating to the ransom of prisoners.

279. The right of demanding a ransom may be transferred.

280. What may annul the convention made for the rate of the ransom.

281. A prisoner dying before payment of ransom.

282. Prisoner released on condition of procuring the release of another.

283. Prisoner retaken before he has paid his former ransom.

284. Prisoner rescued before he has received his liberty.

285. Whether the things which a prisoner has found means to conceal, belong to him.

286. Hostage given for the release of a prisoner.


CHAP. XVIII. Of Civil War.

287. Foundation of the sovereign's rights against the rebels.

288. Who are rebels.

289. Popular commotion, insurrection, sedition.

290. How the sovereign is to suppress them.

291. He is bound to perform the promises he has made to the rebels.

292. Civil war.

293. A civil war produces two independent parties.

294. They are to observe the common laws of war.

295. The effects of civil war distinguished according to cases.

296. Conduct to be pursued by foreign nations.


BOOK IV.

OF THE RESTORATION OF PEACE: AND OF EMBASSIES.


CHAP. I. Of Peace, and the Obligation to cultivate it.

1. What peace is.

2. Obligation of cultivating it.

3. The sovereign's obligation in that respect.

4. Extent of that duty.

5. Disturbers of the public peace.

6. How far war may be continued.

7. Peace the end of war.

8. General effects of peace.


CHAP. II. Treaties of Peace.

9. Definition of a treaty of peace.

10. By whom it may be concluded.

11. Alienations made by a treaty of peace.

12. How the sovereign may, in a treaty, dispose of what concerns individuals.

13. Whether a king who is a prisoner of war can make peace.

14. Whether peace can be made with an usurper.

15. Allies included in the treaty of peace.

16. Associates to treat, each for himself.

17. Mediation.

18. On what footing peace may be concluded.

19. General effect of the treaty of peace.

20. Amnesty.

21. Things not mentioned in the treaty.

22. Things not included in the compromise or amnesty.

23. Former treaties, mentioned or confirmed in the new, are a part of it.


CHAP. III. Of the Execution of the Treaty of Peace.

24. When the obligation of the treaty commences.

25. Publication of the peace.

26. Time of the execution.

27. A lawful excuse to be admitted.

28. The promise is void when the party to whom it was made has himself hindered the performance of it.

29. Cessation of contributions.

30. Products of the thing restored or ceded.

31. In what condition things are to be restored.

32. The interpretation of a treaty of peace is to be against the superior party.

33. Names of ceded countries.

34. Restoration not to be understood of those who have voluntarily given themselves up.


CHAP. IV. Of the Observance and Breach of the Treaty of Peace.

35. The treaty of peace binds the nation and successors.

36. It is to be faithfully observed.

37. The plea of fear or force does not dispense with the observance.

38. How many ways a treaty of peace may be broken.

39. ——— by a conduct contrary to the nature of every treaty of peace.

40. To take up arms for a fresh cause is no breach of the treaty of peace.

41. A subsequent alliance with an enemy is likewise no breach of the treaty.

42. Why a distinction is to be made between a new war and a breach of the treaty.

43. Justifiable self-defence is no breach of the treaty.

44. Causes of rupture on account of allies.

45. The treaty is broken by what is contrary to its particular nature.

46. ——— by the violation of any article.

47. The violation of a single article breaks the whole treaty.

48. Whether a distinction may here be made between the more and the less important articles.

49. Penally annexed to the violation of an article.

50. Studied delays.

51. Unsurmountable impediments.

52. Infractions of the treaty of peace by the subjects.

53. ——— or by allies.

54. Right of the offended party against him who has violated the treaty.


CHAP. V. Of the Right of Embassy, or the Right of sending and receiving Public Ministers.

55. It is necessary that nations be enabled to treat and communicate together.

56. They do that by the agency of public ministers.

57. Every sovereign state has a right to send and receive public ministers.

58. An unequal alliance, or a treaty of protection, does not take away that right.

59. Right of the princes and states of the empire in that respect.

60. Cities that have the right of banner.

61. Ministers of viceroys.

62. Ministers of the nation or of the regents during an interregnum.

63. Sovereign molesting another in the exercise of the right of embassy.

64. What is allowable in that respect in time of war.

65. The minister of a friendly power is to be received.

66. Resident ministers.

67. Admission of an enemy's ministers.

68. Whether ministers may be received from or sent to an usurper.


CHAP. VI. Of the several Orders of Public Ministers — of the Representative Character, and of the Honours due to Ministers.

69. Origin of the several orders of public ministers.

70. Representative character.

71. Ambassadors.

72. Envoys.

73. Residents.

74. Ministers.

75. Consuls, agents, deputies, commissioners, &c.

76. Credentials.

77. Instructions.

78. Right of sending ambassadors.

79. Honours due to ambassadors.


CHAP. VII. Of the Rights, Privileges, and Immunities of Ambassadors, and other Public Ministers.

80. Respect due to public ministers.

81. Their persons sacred and inviolable.

82. Particular protection due to them.

83. When it commences.

84. What is due to them in the countries through which they pass.

85. Ambassadors going to an enemy's country.

86. Embassies between enemies.

87. Heralds, trumpeters, and drummers.

88. Ministers, trumpeters, &c., to be respected even in a civil war.

89. Sometimes they may be refused admittance.

90. Every thing which has the appearance of insult to them must be avoided.

91. By and to whom they may be sent.

92. Independence of foreign ministers.

93. How the foreign minister is to behave.

94. How he may be punished for ordinary transgressions.

95. ——— for faults committed against the prince.

96. Right of ordering away an ambassador who is guilty or justly suspected.

97. Right of repressing him by force, if he behaves as an enemy.

98. Ambassador forming dangerous plots and conspiracies.

99. What may be done to him according to the exigency of the case.

100. Ambassador attempting against the sovereign's life.

101. Two remarkable instances respecting the immunities of public ministers.

102. Whether reprisals may be made on an ambassador.

103. Agreement of nations concerning the privileges of ambassadors.

104. Free exercise of religion.

105. Whether an ambassador be exempted from all imposts.

106. Obligation founded on use and custom.

107. A minister whose character is not public.

108. A sovereign in a foreign country.

109. Deputies to the states.


CHAP. VIII. Of the Judge of Ambassadors in Civil Cases.

110. The ambassador is exempt from the civil jurisdiction of the country where he resides.

111. How he may voluntarily subject himself to it.

112. A minister who is a subject of the state where he is employed.

113. Immunity of the minister extends to his properly.

114. The exemption cannot extend to effects belonging to any trade the minister may carry on.

115. ———— nor to immovable property which he possesses in the country.

116. How justice may be obtained against an ambassador.


CHAP. IX. Of the Ambassador's House and Domestics.

117. The ambassador's house.

118. Right of asylum.

119. Exemption of an ambassador's carriages.

120. ——— of his retinue.

121. ——— of his wife and family.

122. ——— of the secretary of the embassy.

123. ——— of the ambassador's couriers and despatches.

124. The ambassador's authority over his retinue.

125. When the rights of an ambassador expire.

126. Cases when new credentials are necessary.

127. Conclusion.




THE

LAW OF NATIONS

OR

PRINCIPLES OF THE LAW OF NATURE
APPLIED TO THE CONDUCT AND AFFAIRS
OF NATIONS AND SOVEREIGNS


FROM THE FRENCH OF

 MONSIEUR DE VATTEL.



THE LAW OF NATIONS

PRELIMINARIES.

IDEA AND GENERAL PRINCIPLES
OF THE LAW OF NATIONS.

§ 1. What is meant by a nation or state.

NATIONS or states are bodies politic, societies of men united together for the purpose of promoting their mutual safely and advantage by the joint efforts of their combined strength.

§ 2. It is a moral person.

Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.

To establish on a solid foundation the obligations and rights of nations, is the design of this work.

§ 3. Definition of the law of nations.

The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights. (1)

IDEA AND GENERAL PRINCIPLES

In this treatise it will appear, in what manner States, as such, ought to regulate all their actions. We shall examine the obligations of a people as well towards themselves as towards other nations; and by that means we shall discover the Rights which result from these obligations. For, the right being nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty — it is evident that right is derived from duty, or passive obligation, — the obligation we lie under to act in such or such manner. It is therefore necessary that a Nation should acquire a knowledge of the obligations incumbent on her, in order that she may not only avoid all violation of her duty, but also be able distinctly to ascertain her rights, or what she may lawfully require from other nations.

§ 4. In what light nations or states are to be considered.

Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature, — Nations, or sovereign states, are to be considered as so many free persons living together in the state of nature.

It is a settled point with writers on the natural law, that all men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a State, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign. But the body of the nation, the State, remains absolutely free and independent with respect to all other men, and all other Nations, as long as it has not voluntarily submitted to them.

§ 5. To what laws nations are subject.

As men are subject to the laws of nature, — and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, — the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, as we have just observed (§3), the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties

§ 6. In what the law of nations originally consists.

We must therefore apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights: consequently, the law of Nations is originally no other than the law of Nature applied to Nations. But as the application of a rule cannot be just and reasonable unless it be made in a manner suitable to the subject, we are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only of the subjects to which it is applied, so as to allow of our substituting nations for individuals. A state or civil society is a subject very different from an individual of the human race; from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights: since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different; and a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of a quite different nature. There are many cases, therefore, in which the law of Nature does not decide between state and state in the same manner as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of thus applying it with a precision founded on right reason, that renders the law of Nations a distinct science. (2)

§ 7. Definition of the necessary law of nations.

We call that the Necessary Law of Nations which consists in the application of the law of nature to Nations. It is Necessary because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individuals, since states are composed of men, their resolutions are taken by men, and the law of nature is binding on all men, under whatever relation they act. This is the law which Grotius, and those who follow him, call the Internal law of Nations, on account of its being obligatory on nations in point of conscience. (3) Several writers term it the Natural law of Nations.

§ 8. It is immutable

Since therefore the necessary law of nations consists in the application of the law of nature to states, — which law is immutable, as being founded on the nature of things, and particularly on the nature of man, — it follows that the Necessary law of nations is immutable.

§ 9. Nations can make no change in it, nor dispense with the obligations arising from it.

Whence, as this law is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.

This is the principle by which we may distinguish lawful conventions or treaties from those that are not lawful, and innocent and rational customs from those that are unjust or censurable.

There are things, just in themselves, and allowed by the necessary law of nations, on which states may mutually agree with each other, and which they may consecrate and enforce by their manners and customs. There are others of an indifferent nature, respecting which, it rests at the option of nations to make in their treaties whatever agreements they please, or to introduce whatever custom or practice they think proper. But every treaty, every custom, which contravenes the injunctions or prohibitions of the Necessary law of nations is unlawful. It will appear, however, in the sequel that it is only by the Internal law, by the law of Conscience, such conventions or treaties are always condemned as unlawful, and that, for reasons which shall be given in their proper place, they are nevertheless often valid by the external law. Nations being free and independent, though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that nation would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating her actions; an assumption on their part, that would be contrary to the law of nature, which declares every nation free and independent of all the others.

§ 10. Society established by nature between all mankind

Man is so formed by nature, that he cannot supply all his own wants, but necessarily stands in need of the intercourse and assistance of his fellow-creatures, whether for his immediate preservation, or for the sake of perfecting his nature, and enjoying such a life as is suitable to a rational being. This is sufficiently proved by experience. We have instances of persons, who, having grown up to manhood among the bears of the forest, enjoyed not the use of speech or of reason, but were, like the brute beasts, possessed only of sensitive faculties. We see moreover that nature has refused to bestow on men the same strength and natural weapons of defence with which she has furnished other animals — having, in lieu of those advantages, endowed mankind with the faculties of speech and reason, or at least a capability of acquiring them by an intercourse with their fellow-creatures. Speech enables them to communicate with each other, to give each other mutual assistance, to perfect their reason and knowledge; and having thus become intelligent, they find a thousand methods of preserving themselves, and supplying their wants. Each individual, moreover, is intimately conscious that he can neither live happily nor improve his nature without the intercourse and assistance of others. Since, therefore, nature has thus formed mankind, it is a convincing proof of her intention that they should communicate with, and mutually aid and assist each other.

Hence is deduced the establishment of natural society among men. The general law of that society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself: (4) a law which all men must observe in order to live in a manner consonant to their nature, and conformable to the views of their common Creator — a law which our own safety, our happiness, our dearest interests, ought to render sacred to every one of us. Such is the general obligation that binds us to the observance of our duties: let us fulfil them with care, if we would wisely endeavour to promote our own advantage. (5)

It is easy to conceive what exalted felicity the world would enjoy, were all men willing to observe the rule that we have just laid down. On the contrary, if each man wholly and immediately directs all his thoughts to his own interest, if he does nothing for the sake of other men, the whole human race together will be immersed in the deepest wretchedness. Let us therefore endeavour to promote the general happiness of mankind; all mankind, in return, will endeavour to promote ours, and thus we shall establish our felicity on the most solid foundations.

§ 11. And between all nations.

The universal society of the human race being an institution of nature herself, that is to say, a necessary consequence of the nature of man, — all men, in whatever stations they are placed, are bound to cultivate it, and to discharge its duties. They cannot liberate themselves from the obligation by any convention, by any private association. When, therefore, the unit in civil society for the purpose of forming a separate state or nation, they may indeed enter into particular engagements towards those with whom they associate themselves; but they remain still bound to the performance of their duties towards the rest of mankind. All the difference consists in this, that having agreed to act in common, and having resigned their rights and submitted their will to the body of the society, in every thing that concerns their common welfare, it thenceforward belongs to that body, that state, and its rulers, to fulfil the duties of humanity towards strangers, in every thing that no longer depends on the liberty of individuals; and it is the state more particularly that is to perform those duties towards other states. We have already seen, (§ 5), that men united in society remain subject to the obligations imposed upon them by human nature. That society, considered as a moral person, since possessed of an understanding, volition, and strength peculiar to itself, is therefore obliged to live on the same terms with other societies or states, as individual man was obliged, before those establishments, to live with other men, that is to say, according to the laws of the natural society established among the human race, with the difference only of such exceptions as may arise from the different nature of the subjects.

§ 12. The object of this society of nations

Since the object of the natural society established between all mankind is — that they should lend each other mutual assistance, in order to attain perfection themselves, and to render their condition as perfect as possible, — and since nations, considered as so many free persons living together in a state of nature, are bound to cultivate human society with each other, — the object of the great society established by nature between all nations is also the interchange of mutual assistance for their own improvement, and that of their condition.

§ 13. General obligation imposed by it.

The first general law that we discover in the very object of the society of nations, is that each individual nation is bound to contribute every thing in her power to the happiness and perfection of all the others.1

§ 14. Explanation of this observation.

But the duties that we owe to ourselves being unquestionably paramount to those we owe to others, — a nation owes herself in the first instance, and in preference to all other nations, to do every thing she can to promote her own happiness and perfection. (I say every thing she can, not only in a physical but in a moral sense, — that is, every thing that she can do lawfully, and consistently with justice and honour.) When, therefore, she cannot contribute to the welfare of another nation without doing an essential injury to herself, her obligation ceases on that particular occasion, and she is considered as lying under a disability to perform the office in question. (6)

§ 15. The second general law is the liberty and independence of nations.

Nations being free and independent of each other, in the same manner as men are naturally free and independent, the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature. The natural society of nations cannot subsist, unless the natural rights of each be duly respected. No nation is willing to renounce her liberty; she will rather break off all commerce with those states that should attempt to infringe upon it.

§ 16. Effect of that liberty.

As a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes to her, — of what she can or cannot do, — of what it is proper or improper for her to do: and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty which she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such particular manner: for any attempt at such compulsion would be an infringement on the liberty of nations. We have no right to use constraint against a free person, except in those cases where such person is bound to perform some particular thing for us, and for some particular reason which does not depend on his judgment, — in those cases, in short, where we have a perfect right against him.

§ 17. Distinctions between internal and external, perfect and imperfect obligations and rights.

In order perfectly to understand this, it is necessary to observe, that the obligation, and the right which corresponds to or is derived from it, are distinguished into external and internal. The obligation is internal, as it binds the conscience, and is deduced from the rules of our duty: it is external, as it is considered relatively to other men, and produces some right between them. The internal obligation is always the same in its nature, though it varies in degree; but the external obligation is divided into perfect and imperfect; and the right that results from it is also perfect or imperfect. The perfect right is that which is accompanied by the right of compelling those who refuse to fulfill the correspondent obligation; the imperfect right is unaccompanied by that right of compulsion. The perfect obligation is that which gives to the opposite party the right of compulsion; the imperfect gives him only a right to ask.

It is now easy to conceive why the right is always imperfect, when the correspondent obligation depends on the judgment of the party in whose breast it exists; for if, in such a case, we had a right to compel him, he would no longer enjoy the freedom of determination respecting the conduct he is to pursue in order to obey the dictates of his own conscience. Our obligation is always imperfect with respect to other people, while we possess the liberty of judging how we are to act: and we retain that liberty on all occasions where we ought to be free.

§ 18. Equality of nations.

Since men are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature — Nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.

§ 19. Effect of that equality.

By a necessary consequence of that equality, whatever is lawful for one nation is equally lawful for any other; and whatever is unjustifiable in the one is equally so in the other.

§ 20. Each nation is mistress of her own actions, when they do not affect the perfect rights of others.

A nation then is mistress of her own actions so long as they do not affect the proper and perfect rights of any other nation — so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her.

§ 21. Foundation of the voluntary law of nations.

Since nations are free, independent, and equal — and since each possesses the the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfil her duties the effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between nations in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one nation may be done by any other; and they ought, in human society, to be considered as possessing equal rights.

Each nation in fact maintains that she has justice on her side in every dispute that happens to arise; and it does not belong to either of the parties interested, or to other nations, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against her own conscience; but as there exists a possibility that she may perhaps have justice on her side, we cannot accuse her of violating the laws of society.

It is therefore necessary, on many occasions, that nations should suffer certain things to be done, though in their own nature unjust and condemnable, because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society. And since they are bound to cultivate that society, it is of course presumed that all nations have consented to the principle we have just established. The rules that are deduced from it constitute what Monsieur Wolf calls "The voluntary law of nations"; and there is no reason why we should not use the same term, although we thought it necessary to deviate from that great man in our manner of establishing the foundation of that law. (7)

§ 22. Right of nations against the infractors of the law of nations.

The laws of natural society are of such importance to the safety of all states, that, if the custom once prevailed of trampling them under foot, no nation could flatter herself with the hope of preserving her national existence, and enjoying domestic tranquility, however attentive to pursue every measure dictated by the most consummate prudence, justice, and moderation.2 Not all men and all states have a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensable obligation. All nations have therefore a right to resort to forcible means for the purpose of repressing any one particular nation who openly violates the laws of the society which Nature has established between them, or who directly attacks the welfare and safety of that society.

§ 23. Measure of that right.

But care must be taken not to extend that right to the prejudice of the liberty of nations. They are all free and independent, but bound to observe the laws of that society which Nature has established between them; and so far bound, that, when any of them violates those laws, the others have a right to repress her. The conduct of each nation, therefore, is no further subject to the control of the others, than as the interests of natural society are concerned. The general and common right of nations over the conduct of any sovereign state is only commensurate to the object of that society which exists between them.

§ 24. Conventional law of nations, or law of treaties.

The several engagements into which nations may enter produce a new kind of law of nations, called Conventional, or of Treaties. As it is evident that a treaty binds none but the contracting parties, the conventional law of nations is not a universal but a particular law. All that can be done on this subject, in a treatise on the Law of Nations, is to lay down those general rules which nations are bound to observe with respect to their treaties. A minute detail of the various agreements made between particular nations, and of the rights and obligations thence resulting, is matter of fact, and belongs to the province of history.

§ 25. Customary law of nations.

Certain maxims and customs, consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law, form the Customary Law of Nations, or the Custom of Nations. (8) This law is founded on a tacit consent, or, if you please, on a tacit convention of the nations, that observe it towards each other. Whence it appears that it is not obligatory except on those nations who have adopted it, and that it is not universal, any more than the conventional law. The same remark, therefore, is equally applicable to this customary law, viz. that a minute detail of its particulars does not belong to a systematic treatise on the law of nations, but that we must content ourselves with giving a general theory of it; that is to say, the rules which are to be observed in it, as well with a view to its effects, as to its substance; and with respect to the latter, those rules will serve to distinguish lawful and innocent customs from those that are unjust and unlawful.

§ 26. General rule respecting that law.

When a custom or usage is generally established, either between all the civilized nations in the world, or only between those of a certain continent, as of Europe, for example, or between those who have a more frequent intercourse with each other; if that custom is in its own nature indifferent, and much more, if it be useful and reasonable, it becomes obligatory on all the nations in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. (9) But if that custom contains any thing unjust or unlawful, it is not obligatory; on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorize her to violate the law of nature.

§ 27. Positive law of nations.

These three kinds of law of nations, the Voluntary, the Conventional, and the Customary, together constitute the Positive Law of Nations. (10) For they all proceed from the will of Nations; the Voluntary from their presumed consent, the Conventional from an express consent, and the Customary from tacit consent; and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of Positive Law of Nations.

We shall be careful to distinguish them from the Natural or Necessary law of nations, without, however, treating of them separately. But after having, under each individual head of our subject, established what the Necessary law prescribes, we shall immediately add how and why the decisions of that law must be modified by the Voluntary law; or (which amounts to the same thing in other terms) we shall explain how, in consequence of the liberty of nations, and pursuant to the rules of their natural society, the external law which they are to observe towards each other differs in certain instances from the maxims of the internal law, which nevertheless remains always obligatory in point of conscience. As to the rights introduced by Treaties or by Custom, there is no room to apprehend that any one will confound them with the Natural law of nations. They form that species of law of nations which authors have distinguished by the name of Arbitrary.

§ 28. General maxim respecting the use of the necessary and the voluntary law.

To furnish the reader beforehand with a general direction respecting the distinction between the Necessary and the Voluntary law, let us here observe, that, as the Necessary law is always obligatory on the conscience, a nation ought never to lose sight of it in deliberating on the line of conduct she is to pursue in order to fulfil her duty; but when there is question of examining what she may demand of other states, she must consult the Voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind.


N.B. The notes numbered [in parentheses] as 1, 2, 3, 4, &c., and in general concluding with C., are by the present Editor [Chitty] [unless indicated otherwise, as by the 1797 editor].

(1) The Law of Nations modifies the intercourse of independent commonwealths in peace, and prescribes limits to their hostilities in war. It prescribes, that in peace nations should do each other as much good, and in time of war as little harm, as may be possible, without injuring their own proper real interests. The laws of nations, in short, establish that principle and rule of conduct which should prevent the strongest nation from abusing its power, and induce it to act justly and generously towards other states, upon the broad principle that true happiness, whether of a single individual or of several, can only result from each adopting conduct influenced by a sincere desire to increase the general welfare of all mankind. (Post, § 13, 14; Mackintosh, Dis. 3, 4; Montesq. de l'Esprit des Lois, liv. 1, c. 3; and see 1 Bla. Com. 34 to 44; 4 Bla. Com. 66, 67.) In cases of doubt arising upon what is the Law of Nations, it is now an admitted rule among all European nations, that our common religion, Christianity, pointing out the principles of natural justice, should be equally appealed to and observed by all as an unfailing rule of construction, (2 Ward's Law of Nations, pp. 11, 339, 340.) The difficulty is, that there is no general moral international code framed by the consent of the European powers, so desirable to be fixed, especially at this period, when harmony happily appears to subsist, and most of the nations of Europe have, by recent experience, become practically convinced of the advantages that would result from the establishment of fixed general rules, so as to reconcile the frequent discordancy of the decisions of their various prize tribunals and upon other contests. The statesmen of the higher powers of Europe would immortalize themselves by introducing such a code, and no period of history for the purpose has been so favourable and opportune. (See Atcheson's Report of the case of Havelock v. Rockwood, Preface i.)

The law of nations is adopted in Great Britain in its full and most liberal extent by the common law, and is held to be part of the law of the land; and all statutes relating to foreign affairs should be framed with reference to that rule. (4 Bla. Com. 67.) But still there is no general code; and to the regret that none has been introduced, may be also added, the want of an international court or tribunal, to decide upon and enforce the law of nations when disputed; and consequently, although when states are temperately inclined to ascertain and be governed by the law of nations, there will be little doubt upon the decision, or of the adoption of measures the most just; yet, if a state will not listen to the immutable principles of reason, upon the basis of which the imperfect law of nations is founded, then the only remedy is to appeal to arms; and hence frequently the just cause of war, which, if there were a fixed code, with a proper tribunal to construe it, would in general be prevented.

The sources from whence is to be gathered information — what is the positive Law of Nations generally and permanently binding upon all independent states? are acknowledged to be of three descriptions : First, the long and ordinary PRACTICE of nations, which affords evidence of a general custom, tacitly agreed to be observed until expressly abrogated. Secondly, the RECITALS of what is acknowledged to have been the law or practice of nations, and which recitals will frequently be found in modern treaties. Thirdly, the WRITINGS of eminent authors, who have long, as it were by a concurrence of testimony and opinion, declared what is the existing international jurisprudence.

Thus Lord Mansfield in Triquet v Bath, (3 Burr. Rep. 1481,) stated as the declaration of Lord Talbot, that the law of nations is to be collected from the practice of different nations, (and see per Sir William Scott, in The Fladoyen, 1 Rob. Rep. 115, post, lxiii. n. (7),) and the authority of writers, such as Grotius, Barbeyrac, Bynkershoek, Wicquefort, &c., there being no English writer of eminence upon the subject, and English elementary writers of high authority have also acknowledged that such foreign authors are authorities to ascertain the law of nations. (Comyn's Digest, tit. "Ambassador," B.; Viner's Ab. "Merchant," A. 1; and 3 Bla. Com. 273) To these are to be added Puffendorf, Wolf, Selden, Valen, Clerac, Pothier, Burlamaqui, Emerigon, Roccus, Casegis, Loecenius, Santerna, Maline, Molloy, and above all, the present work of Vattel; to which may be added some modern works of great ability, but not yet acknowledged to be such high general authority as the former, viz. Ward's and Marten's Law of Nations, and the recent valuable French publication, Cours de Droit Public Interne et Externe, par le Commandeur Silvestre Pinheiro Ferreira, Ministre D'Etat au Paris, 1830, which embraces the French modern view of the law of nations upon most of the subjects discussed in Vattel and some others.

It was from the more ancient of these several authors, and other similar resources, that Lord Mansfield framed the celebrated letter of the Duke of Newcastle to the King of Prussia's Secretary, which is considered a standard of authority, upon the laws of nations, as far as respects the then disputed right to search for and seize enemies' property on board neutral ships in certain cases in time of war. (See Holliday's Life of Lord Mansfield, vol. 2, p. 424, &c., and Collectanea Juridica 1 vol. 129; see also Fifeash v. Becker, 3 Maule & Selwyn, 284, in which Lord Ellenborough quotes several of the above authors, to ascertain the law of nations upon the privilege of consuls.)

Upon some parts of the law of nations, especially that relating to maritime affairs, there are ancient codes, which either originated in authority, or were afterwards acknowledged to have become such; but still those codes in the present state of commercial intercourse are imperfect. Of those are the Rhodian Laws, being one of the earliest systems of marine law, but which was superseded by the collection entitled Consolato del Mare, Grotius, Book 3, ch. 1, s. 5, n. 6. Next in order are the Laws of Oleron, promulgated about the thirteenth century. Another system of international law was framed by the deputies of the Hanseatic League in 1597, and which was confirmed with additions in 1614, and has obtained much consideration in the maritime jurisprudence of nations. (See remarks on that code, 2 Ward's Law of Nations. 276 to 290). But the most complete and comprehensive system of the marine law of nations is the celebrated Ordinance of Marine of Louis XIV., published in 1681, and which coupled with the commentary of Valin, Lord Mansfield always treated as of the highest authority. (See 1 Marshall on Insurance, Prelim. Dis. 18.)

In modern times, in order to prevent any dispute upon the existence or application of the general law of nations, either pending peace, or at or after the subsequently breaking out of war between two or more independent states, it has become the practice to enter into express treaties, carefully providing for every contingency, and especially modifying and softening the injurious consequences of sudden war upon the commercial and other intercourse between the two states, and sometimes even wholly changing the character of war or of alienage, and even enabling a foreign alien enemy during war to retain his interest in land in the opponent country. (See an illustrating instance in Sutton v. Sutton. 1 Russ. & My. Rep. 663.) (Society, &c. v. New Haven, 8 Wheat. R. 464.) In these cases, the treaty between the two contracting states either alters, or expressly declares the law of nations, and binds each. But still questions upon the general law of nations will frequently arise, and it will then become necessary to recur to the other evidence of what is the law of nations, viz. the previous ordinary and general or particular practice, or the opinion of the authors before alluded to.

In the latter part of the last, and in the present century, a great accession of learning, information, and authority upon the law of nations has been afforded by the valuable decisions of Sir W. Scott, (afterwards Lord Stowell,) and Sir J. Nicholl in the Court of Admiralty and Prize Court, and by several decisions in our Courts of Law and Equity. The known learning and scrupulous justice evinced in those decisions, have commanded the respect, the admiration and adoption, of all the European states, and of that modern, enlightened, and energetic nation, America. To these may be added, Chalmer's Collection of Opinions, which contain great learning upon many subjects of the public affairs of nations. These have been fully published since Vattel wrote; and the editor has attempted to improve this edition, by occasionally referring in the notes to the reports and work alluded to. The editor has also, in his Treatise on Commercial Law, and in a Summary of the Law of Nations, endeavoured to lake a more extended view of some of those branches of the law of nations, principally as it affects foreign commerce, and of the decisions and works subsequent to the publication of Vattel.

If the perfect general rights or law of nations be violated, then it appears to be conceded, that such violation may be the actual and avowed ground of a just war; and it is even laid down that it is the duly of every nation to chastise the nation guilty of the aggression. (Vattel, post, Book I. chap. xxiii. § 24, p. 144; § 65, 66, 67, p. 160, 161)

Unhappily, especially in modern times, we have found that the law of nations has sometimes been set at naught by over-powerful states, adhering (to use the words of an English monarch) rather to Common Law than stopping to inquire whether the law of nature and of justice had not become, and been declared in that instance, part of the law of nations. It may therefore be asked, of what utility is the law of nations, since it is of such imperfect and inefficient obligation? The answer is, that all nations, although for a time astounded and surprised by the unexpected aggression of an oppressive and ambitious conqueror, will yet ultimately feel, and endeavour to give effect to, the true law of nations, lest, by suffering its continued violations, they may individually be sacrificed; and consequently, as in the instance alluded to, they will ultimately coalesce and associate in one common cause, to humiliate and overcome the proud invader of all just rights and principles. It is therefore of the highest importance to collect all the principles and rules, which, in cases of doubt, must ever be consulted, at least by statesmen, in endeavouring to settle differences between differing states; and no authority stands higher in this respect than Vattel.

There is no permanent and general international court, and it will be found that in general the sovereign, or government of each state, who has the power of declaring war and peace, has also, as an incident, sole power of deciding upon questions of booty, capture, prize, and hostile seizure, though sometimes that power is delegated, as in Great Britain, as respects maritime seizures, by commission to the judge of the Admiralty Court, with an appeal from his decisions to the Privy Council. In these cases no other municipal court has cognizance in case of any hostile seizure. Elphinstone v. Bedreechund, Knapp's Rep. 316 to 361; and Hill v. Reardon, 2 Russ. Rep. 608, and further, post. p. 392. So there is no general international court in which a treaty can be directly enforced, although, collaterally, its meaning may be discussed in a municipal court; therefore, no bill to enforce a treaty can be sustained in equity. Nobob of Carnatic v. East India Company, 2 Ves. jun. 56; and Hill v. Reardon, 1 Sim. & Stu. 437; 2 Russ. Rep. 608.

Sometimes, however, especially in modern limes, treaties, confirmed by temporary statutes in each country, appoint a temporary international court, with limited powers, to decide upon certain claims, and to be satisfied out of an appointed public fund. Thus, in the treaty of peace between Great Britain and France, and by the 59 G. 3, c. 31, certain commissioners were appointed to carry into effect the conventions for liquidating the claims of British subjects on the French government, with an appeal to the Privy Council. In these cases, the appointed jurisdiction is exclusive, and no other municipal court has any power as regards the adjustment of the claims between the two subjects of each country; — though, as between private individuals, if any claimant stand in the situation of an agent or trustee, then, in a court of equity, he may be compelled to act as a trustee of the sum awarded to him. Hill v. Reardon, Jac. Rep. 84; 2 Russ Rep. 608 to 633. overruling the Vice-Chancellor's decision in 2 Sinc. & Stu. 437. — C, {Comegys v. Vasce, 1 Peters S.C. Rep. 193, decided upon the Treaty with Spain, which ceded Florida to the United States, dated May 2d, 1819. See also Lestapies v. Ingraham, 5 Barr, 71, and the cases cited.}

(2) M. de Vattel then proceeds to state the different heads of international law, which has been variously subdivided by other writers. The clearest division is under two principal heads — First, the natural law of nations; and secondly, the positive. The former is that of God and our conscience, and consequently immutable, and ought to be the basis of the positive laws of nations, The positive is threefold; First the universal voluntary law or uniform practice of nations in general; secondly, the customary law; and thirdly, the conventional law or treaties. (See 1 Chitty's Commercial Law, 25 to 47.) — C.

The following note of a former editor is deservedly retained.

The study of the science of the law of nations presupposes an acquaintance with the ordinary law of nature, of which human individuals are the objects. Nevertheless, for the sake of those who have not systematically studied that law, it will not be amiss to give in this place a general idea of it. The natural law is the science of the laws of nature, of those laws which nature imposes on mankind or to which they are subject, by the very circumstances of their being men; a science, whose first principle is this axiom of incontestable truth — "The great end of every being endowed with intellect and sentiment, is happiness." It is by the desire alone of that happiness, that we can bind a creature possessed of the faculty of thought, and form the ties of that obligation which shall make him submit to any rule. Now, by studying the nature of things, and that of man in particular, we may thence deduce the rules which man must follow in order to attain his great end, — to obtain the most perfect happiness of which he is susceptible. We call those rules the natural laws, or the laws of nature. They are certain, they are sacred, and obligatory on every man possessed of reason, independently of every other consideration than that of his nature, and even though we should suppose him totally ignorant of the existence of a God. But the sublime consideration of an eternal, necessary, infinite Being, that author of the universe, adds the most lively energy to the law of nature, and carries it to the highest degree of perfection. That necessary Being necessarily unites in himself all perfection: he is, therefore, superlatively good, and displays his goodness by forming creatures susceptible of happiness. It is then his wish that his creatures should be as happy as is consistent with their nature: consequently, it is his will that they should, in their whole conduct, follow the rules which that same nature lays down for them, as the most certain road to happiness. Thus the will of the Creator perfectly coincides with the simple indications of nature; and those two sources producing the same law, unite in forming the same obligation. The whole reverts to the first great end of man, which is happiness. It was to conduct him to that great end that the laws of nature were ordained: it is from the desire of happiness that his obligation to observe those laws arises. There is, therefore, no man — whatever may be his ideas respecting the origin of the universe — even if he had the misfortune to be an atheist — who is not bound to obey the laws of nature. They are necessary to the general happiness of mankind; and whoever should reject them, whoever should openly despise them would by such conduct alone declare himself an enemy to the human race, and deserve to be treated as such. Now, one of the first truths which the study of man reveals to us, and which is a necessary consequence of his nature, is, that in a state of lonely separation from the rest of his species, he cannot attain his great end — happiness: and the reason is, that he was intended to live in society with his fellow-creatures. Nature, herself, therefore, has established that society, whose great end is the common advantage of all its members; and the means of attaining that end constitute the rules that each individual is bound to observe in his whole conduct. Such are the natural laws of human society. Having thus given a general idea of them, which is sufficient for any intelligent reader, and is developed at large in several valuable works, let us return to the particular object of this treatise. — Note ed. A.D. 1797.

(3) See this position illustrated, Mackintosh, Dis. 7; 1 Chitty's Commercial Law 28 and n. (4) post lx — C.

(4) Ante, lvii. n. (2), post. lx. n. (4).

(5) See the same position, post, § 13, and post, chap. 11. § 2 and 88. The natural, or primary law, is that of God and our conscience, the law which enjoins us to do good to our neighbour, whether in literal strictness he may have a perfect right to demand such treatment from us or not. This is a law that ought to be as strong in obligation as the most distinct and positive rule, though it may not always be capable of the same precise definition, nor consequently may allow the same remedies to enforce its observance. As an individual is bound by the law of nature to deal honourably and truly with other individuals whether the precise acts required of him be or be not such as their own municipal law will enforce; just so a state, in its relations with other states, is bound to conduct herself in this spirit of justice, benevolence, and good faith, even though there be no positive rules of international law, by the letter of which she may be actually tied down. The same rules of morality which hold together men in families, and which form families into a commonwealth, also link together several commonwealths as members of the great society of mankind. Commonwealths, as well as private men, are liable to injury, and capable of benefit from each other; It is therefore their duty to reverence, to practise, and to enforce, those rules of justice which control and restrain injury, which regulate and augment benefit, which preserve civilized states in a tolerable condition of security from wrong, and which, if they could be generally obeyed, would establish, and permanently maintain, the well-being of the universal commonwealth of the human race. (See Observations in 1 Chitty's Commercial Law, 28; Mackintosh, Disc. 7; Peake's Rep. 116; 2 Hen. Bla. 259; and see ante § 7; and see extract from Mr. Pitt's celebrated speech on concluding the commercial treaty between Great Britain and France In A.D. 1766, and in which he powerfully refuted the doctrine of national and hereditary antipathy between England and France, post, book ii. chap. ii. §21, p. 144. — C.

1. Xenophon points out the true reason of this first of all duties, and establishes its necessity. In the following words: — "If we see a man who is uniformly eager to pursue his own private advantage, without regard to the rules of honour or the duties of friendship, why should we in any emergency think of sparing him?" Note edit. A.D. 1797. See modern authorities in support of that position, ante, lv n. (1), lx, n. (5); Book ii chap. 11. § 21, p. 144 post,— C.

(6) Puffendorf, b. lii. c. 3. s. 6. p. 29, writes clearly and decidedly on this important subject; — he observes "The law of humanity does not seem to oblige us to grant passage to any other goods, except such as are absolutely necessary for the support of their life to whom they are thus conveyed." — C.

(7) The natural primary or internal law of nations which is thus binding in conscience, and immutable. It must be admitted, is mere theory, until it has been assented to by a state as binding on her; but besides that law of conscience, which until so assented to, is imperfect, there is what is termed the positive or secondary law of nations, and which is threefold; first, the universal voluntary law, or those rules which are considered to have become law by the uniform practice of nations in general, and by the manifest utility of the rules themselves; — secondly, the customary law, or that which, from motives of convenience, has by tacit but implied agreement prevailed, not generally indeed among all nations, nor with so paramount utility as to become a portion of universal voluntary law, but enough to have acquired a prescriptive obligation among certain states, so situated as to be mutually benefited by it, as the customary law prevailing among different nations in the whale fishery, and illustrated by the decision In Fennings v. Lord Grenville 1 Taunt. Rep. 241, 248, upon the division of the profits arising from a whale when killed by the crews of several boats; and thirdly, the conventional law, or that which is agreed between particular states by express treaties, a law binding only upon the parties among whom such treaties are in force. See 1 Chitty's Commercial Law, 28, 29, and see post, § 27, p. 66.

In the case of the ship, Flad Oyen, 1 Rob. Rep. 115, Sir William Scott observed, "A great part of the law of nations stands on the usage and practice of nations, and on no other foundation; it is introduced, indeed, by general principles, but it travels with those general principles only to a certain extent; and if it stops there, you are not at liberty to go farther and to say, that mere general speculations would bear you out in a further progress; thus, for instance, on mere general principles, it is lawful to destroy your enemy, and mere general principles make no great difference as to the manner by which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish "those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes: "so it has ever been the practice of nations to bring vessels captured by them into their own ports, and to condemn them as prize in their own Admiralty Courts; and therefore a sentence of condemnation in the neutral country would be illegal and void. Ibid. —; C.

2. Etenim si haec pertubare omnia et permiscere volumus, totam vitam, periculosam, insidiosam, infestamque reddemus, Cicero in Ver. ii. 15.

(8) From the authorities cited in Benest v. Pipon, Knapp's Rep. 67, It seems, that most nations agree, that twenty years' uninterrupted usage (for twenty years is evidence as well of public and general customs or practices as of private rights) is sufficient to sustain the same. — C.

(9) As to this position, see further. Marten's L.N. 356, and Pennings v. Lord Grenville, 1 Taunton's Rep. 248. There must be a reasonable notification, in point of time, of the intention, not to be bound by the customary law. Ibid. and 1 Chitty's Criminal Law 29, 35, 92. — C.

(10) See Division of Laws of Nations, ante, lvii. n. (2). — C.


The LAW OF NATIONS

BOOK I:

OF NATIONS CONSIDERED IN THEMSELVES.

TABLE OF CONTENTS

CHAP. I. Of Nations or Sovereign States.

1. Of the state, and of sovereignty.

2. Authority of the body politic over the members.

3. Of the several kinds of government.

4. What are sovereign states.

5. States bound by unequal alliance.

6. ——— or by treaties of protection.

7. Tributary states.

8. Feudatory states.

9. Two states subject to the same prince.

10. States forming a federal republic.

11. A state that has passed under the dominion of another.

12. Objects of this treatise.


CHAP. II. General Principles of the Duties of a Nation towards herself.

13. A nation ought to act agreeably to her nature.

14. Preservation and perfection of a nation.

15. End of civil society.

16. A nation is under an obligation to preserve herself.

17. ———— and to preserve her members.

18. A nation has a right to every thing necessary for her preservation.

19. She ought to avoid every thing that might occasion her destruction.

20. Her right to every thing that may promote this end.

21. A nation ought to perfect herself and her condition.

22. ———— and to avoid every thing contrary to her perfection.

23. The right she derives from these obligations.

24. Examples.

25. A nation ought to know herself.


CHAP. III. Of the Constitution of a State, and the Duties and rights of a Nation in that respect.

26. Of the public authority.

27. What is the constitution of a state.

28. The nation ought to choose the best constitution.

29. Political, fundamental, and civil laws.

30. Support of the constitution, and obedience to the laws.

31. Right of a nation with respect to her constitution and government.

32. She may reform the government.

33. ———— and may alter the constitution.

34. Of the legislative power, and whether it can alter the constitution.

35. The nation ought not to attempt it without great caution.

36. She is the judge of all disputes relative to the government.

37. No foreign power has a right to interfere.


CHAP. IV. Of the Sovereign, his Obligations, and his Rights.

38. Of the sovereign.

39. He is solely established for the safety and advantage of society.

40. His representative character.

41. He is intrusted with the obligations of the nation, and invested with her rights.

42. His duty with respect to the preservation and perfection of the nation.

43. His rights in that respect.

44. He ought to know the nation.

45. Extent of his power: — prerogatives of majesty.

46. The prince is bound to respect and support the fundamental laws.

47. He may change the laws not fundamental.

48. He is bound to maintain and observe the existing laws.

49. In what sense he is subject to the laws.

50. His person is sacred and inviolable.

51. But the nation may repress a tyrant, and renounce her allegiance to him.

52. Arbitration between the king and his subjects.

53. Obedience which subjects owe to a sovereign.

54. In what cases they may resist him.

55. Ministers.


CHAP. V. Of States, Elective, Successive, or Hereditary and of those called Patrimonial

56. Elective states.

57. Whether elective kings be real sovereigns.

58. Successive and hereditary states: — origin of the right of succession.

59. Other origins of that right.

60. Other sources, which still amount to the same thing.

61. A nation may change the order of the succession.

62. Of Renunciations.

63. The order of succession ought commonly to be observed.

64. Regents.

65. Indivisibility of sovereignties.

66. Who are to decide disputes respecting the succession to a sovereignty.

67. The right of succession not to depend on the judgment of a foreign power.

68. Of States called patrimonial.

69. Every true sovereignty is unalienable.

70. Duty of a prince who is empowered to nominate his successor.

71. His nomination must be sanctioned by at least the tacit ratification of the people.


CHAP. VI. Principal Objects of a good Government; and first, to provide for the Necessities of the Nation.

The object of society points out the duties of the sovereign:

72. ——— he is bound to procure plenty.

73. ——— to take care that there be a sufficient number of workmen.

74. ——— to prevent the emigration of those that are useful.

75. Emissaries who entice them away.

76. Labour and industry must be encouraged.


CHAP. VII. Of the Cultivation of the Soil.

77. Utility of Agriculture.

78. ——— Regulations necessary in that respect: for the distribution of land.

79. ——— for the protection of husbandsmen.

80. Husbandry ought to be placed in an honourable light.

81. Cultivation of the soil a natural obligation.

82. Public granaries.


CHAP. VIII. Of Commerce.

83. Domestic and foreign trade.

84. Utility of domestic trade.

85. Utility of foreign trade.

86. Obligation to cultivate domestic trade.

87. Obligation to carry on foreign trade.

88. Foundation of the laws of commerce: — right of purchasing.

89. Right of selling.

90. Prohibition of foreign merchandises.

91. Nature of the right of purchasing.

92. Each nation to determine for herself how she will carry on commerce.

93. How A nation acquires a perfect right to a foreign trade.

94. Simple permission to carry on trade.

95. Whether commercial rights be subject to prescription.

96. Imprescriplibility of rights founded on treaty.

97. Monopolies, and trading companies with exclusive privileges.

98. Balance of trade, and attention of government in that respect.

99. Import duties.


CHAP. IX. Of the Care of the Public Ways; and of Tolls.

100. Utility of highways, canals, &c.

101. Duty of government in that respect.

102. Its right In that respect.

103. Foundation of the right to demand toll.

104. Abuse of that right.


CHAP. X. Of Money and Exchange.

105. Establishment of money.

106. Duty of the nation or prince with respect to the coin.

107. Their rights in that respect.

108. How one nation may injure another in the article of coin.

109. Exchange, and commercial laws.


CHAP. XI. Second Object of a good Government, — to procure the true Happiness of a Nation.

110. A nation is bound to labour after her own happiness.

111. Instruction.

112. Education of youth.

113. Arts and sciences.

114. Freedom of philosophical discussion.

115. Love of virtue, and abhorrence of vice, to be excited.

116. The nation may hence discover the intention other rulers.

117. The nation, or public person, bound to perfect her understanding and will.

118. ——— and to direct the knowledge and virtues of the citizens to the welfare of the society.

119. Love for their country.

120. ——— in individuals.

121. ——— in the nation or state itself, and in the sovereign.

122. Definition of the term "country".

123. How shameful and criminal to injure our country.

124. The glory of good citizens; — Examples.


CHAP. XII. Of Piety and Religion.

125. Piety.

126. It ought to be attended with knowledge.

127. Religion, internal and external.

128. Rights of individuals: — liberty of conscience.

129. Public establishment of religion: — rights and duties of the nation.

130. ——— when there is as yet no established religion.

131. ——— when there is an established religion.

132. Duties and rights of the sovereign with respect to religion.

133. ——— where there is an established religion.

134. Objects of his care, and the means he ought to employ.

135. Toleration.

136. How the prince is to act when the nation is resolved to change her religion.

137. Difference of religion does not deprive a prince of his crown.

138. Duties and rights of the sovereign reconciled with those of the subjects.

139. The sovereign ought to have the inspection of the affairs of religion, and authority over those who teach it.

140. He is bound to prevent the abuse of the established religion.

141. His authority over the ministers of religion.

142. Nature of that authority.

143. Rule to be observed with respect to ecclesiastics.

144. Recapitulation of the reasons which establish the sovereign's rights in mailers of religion, — Authorities and examples.

145. Pernicious consequences of the contrary opinion.

    Abuses particularized. —

146. 1. The popes.

147. 2. Important employments conferred by a foreign power

148. 3. Powerful subjects dependent on a foreign court.

149. 4. Celibacy of the priests: — Convents.

150. 5. Enormous pretensions of the clergy; — Pre-eminence.

151. 6. Independence, immunities.

152. 7. Immunity of church possessions.

153. 8. Excommunication of men in office.

154. 9. and of sovereigns themselves.

155. 10. The clergy drawing every thing to themselves, and interrupting the course of justice.

156. 11. Money drawn to Rome.

157. 12. Laws and customs inimical to the welfare of states.


CHAP. XIII. Of Justice and Polity.

158. A nation is bound to make justice flourish.

159. ——— to establish good laws.

160. ——— to enforce them.

161. Functions and duties of the prince in that respect.

162. How he is to dispense justice.

163. His duty to appoint upright and enlightened judges.

164. The ordinary courts should determine causes relating to the revenue.

165. Necessary to establish supreme courts, from whose sentence there shall be no appeal.

166. The prince bound to observe the forms of justice.

167. —— to support the authority of the judges, and enforce their decrees.

168. Distributive justice: — distribution of employments and rewards.

169. Punishment of transgressors; — foundation of the right of punishing.

170. Criminal laws.

171. Degree of punishment.

172. Execution of the laws.

173. Right of pardoning.

174. Internal police.

175. Duel or single combat.

176. Means of putting a slop to that disorder.


CHAP. XIV. Third Object of a good Government, — to fortify itself against External Attacks.

177. A nation ought to fortify herself against external attacks.

178. National strength.

179. Increase of population.

180. Valour.

181. Other military virtues.

182. Riches.

183. Public revenues and taxes.

184. The nation ought not to increase her power by unlawful means.

185. Power is but relative.


CHAP. XV. Of the Glory of a Nation.

186. Advantages of glory.

187. Duty of the nation. — How true glory is acquired.

188. Duty of the prince.

189. Duty of the citizens.

190. Example of the Swiss.

191. Attacking the glory of a nation is doing her an injury.


CHAP. XVI. Protection sought by a Nation, and her voluntary submission to a Foreign Power.

192. Protection.

193. Voluntary submission of one nation to another.

194. Several kinds of submission.

195. Right of the citizens when the nation submits to a foreign power.

196. These compacts annulled by the failure of protection.

197. ——— or by the infidelity of the party protected.

198. ——— and by the encroachments of the protector.

199. How the right of the nation protected is lost by her silence.


CHAP. XVII. How a Nation may separate herself from the State of which she is a Member, and renounce her Allegiance to her Sovereign when she is not protected.

200. Difference between the present case and those in the proceeding chapter.

201. Duty of the members of a state, or subjects of a prince who are in danger.

202. Their right when they are abandoned.


CHAP. XVIII. Establishment of a Nation in a Country

203. Possession of a country by a nation.

204. Her right over the part in her possession.

205. Acquisition of the sovereignly in a vacant country.

206. Another manner of acquiring the empire in a free country.

207. How a nation acquires the property of a desert country.

208. A question on this subject.

209. Whether it be lawful to take possession of part of a country inhabited only by a few wandering tribes.

210. Colonies.

211. What is our country.

212. Citizens and natives.

213. Inhabitants.

214. Naturalization.

215. Citizens' children born in a foreign country.

216. Children born at sea.

217. Children born in the armies of the state, or in the house of its minister at a foreign court.

218. Settlement.

219. Vagrants.

220. Whether a person may quit his country.

221. How a person may absent himself for a time.

222. Variation of the political laws in that respect: — they must be obeyed.

223. Cases in which a citizen has a right to quit his country.

224. Emigrants.

225. Sources of their right.

226. If the sovereign infringes their right, he injures them.

227. Supplicants.

228. Exile and banishment.

229. The exile and the banished man have a right to live somewhere.

230. Nature of that right.

231. Duty of nations towards them.

232. A nation cannot punish them for faults committed out of her territories.

233. ——— except such as affect the common safety of mankind.


CHAP. XX. Public, Common, and Private Property.

234. What the Romans called res communes.

235. Aggregate wealth of a nation, and its divisions.

236. Two modes of acquiring public properly.

237. The income of the public property is naturally at the sovereign's disposal.

238. The nation may grant him the use and properly of her common possessions.

239. ——— or allow him the domain, and reserve to herself the use of them.

240. Taxes.

241. The nation may reserve to herself the right of imposing them.

242. Of The sovereign possessing that power.

243. Duties of the prince with respect to taxes.

244. Eminent domain annexed to the sovereignty.

245. Dominion over public property.

246. The sovereign may make laws respecting the use of things possessed in common.

247. Alienation of the property of a corporation.

248. Use of common property.

249. How each member is to enjoy it.

250. Right of anticipation in the use of it.

251. The same right in another case.

252. Preservation and repairs of common possessions.

253. Duty and right of the sovereign in that respect.

254. Private property.

255. The sovereign may subject it to regulations of police.

256. Inheritances.


CHAP. XXI. Of the Alienation of the Public Properly, or the Domain, and that of a Part of the State.

257. The nation may alienate her public property.

258. Duties of the nation in that respect.

259. Duties of the prince.

260. He cannot alienate the public property.

261. The nation may give him a right to do it.

262. Rules on that subject with respect to treaties between nation and nation.

263. Alienation of a part of the state.

264. Rights of the dismembered party.

265. Whether the prince has power to dismember the state.


CHAP. XXII. Of Rivers, Streams, and Lakes.

266. A river that separates two territories.

267. Bed of a river which is dried up or takes another course.

268. Right of alluvion.

269. Whether alluvion produces any change in the right to a river.

270. Consequence of a river changing its bed.

271. Works tending to turn the current.

272. ——— or generally prejudicial to the rights of others.

273. Rules relative to interfering rights.

274. Lakes.

275. Increase of a lake.

276. Land formed on the banks of a lake.

277. Bed of a lake dried up.

278. Jurisdiction over lakes and rivers.


CHAP. XXIII. Of the Sea.

279. The sea, and its use.

280. Whether the sea can be possessed, and its dominion appropriated.

281. Nobody has a right to appropriate to himself the use of the open sea.

282. A nation attempting to exclude another does her an injury.

283. She even does an injury to all nations.

284. She may acquire an exclusive right by treaties.

285. —— but not by prescription and long use.

286. —— unless by virtue of a tacit agreement.

287. The sea near the coasts may become properly.

288. Another reason for appropriating the sea bordering on coasts.

289. How far that possession may extend.

290. Shores and ports.

291. bays and straits.

292. Straits in particular.

293. Right to wrecks.

294. A sea inclosed within the territories of a nation.

295. The parts of the sea possessed by a sovereign are within his jurisdiction.



The LAW OF NATIONS

BOOK I.

OF NATIONS CONSIDERED IN THEMSELVES.

CHAP. I.

OF NATIONS OR SOVEREIGN STATES.

§ 1. Of the state, and of sovereignty

A NATION or a state is, as has been said at the beginning of this work, a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength.

From the very design that induces a number of men to form a society which has its common interests, and which is to act in concert, it is necessary that there should be established a Public Authority, to order and direct what is to be done by each in relation to the end of the association. This political authority is the Sovereignty; and he or they who are invested with it are the Sovereign. (10)

§ 2. Authority of the body politic over the members.

It is evident, that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare. The authority of all over each member, therefore, essentially belongs to the body politic, or state; but the exercise of that authority may be placed in different hands, according as the society may have ordained.

§ 3. Of the several kinds of government.

If the body of the nation keep in its own hands the empire, or the right to command, it is a Popular government, a Democracy; if it intrust it to a certain number of citizens, to a senate, it establishes an Aristocratic republic; finally, if it confide the government to a single person, the state becomes a Monarchy. (11)

These three kinds of government may be variously combined and modified. We shall not here enter into the particulars; this subject belonging to the public universal law;1 for the object of the present work, it is sufficient to establish the general principles necessary for the decision of those disputes that may arise between nations.

§ 4. What are sovereign states.

Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State, Its rights are naturally the same as those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws.

§ 5. States bound by unequal alliance.

We ought, therefore, to account as sovereign states those which have united themselves to another more powerful, by an unequal alliance, in which, as Aristotle says, to the more powerful is given more honour, and to the weaker, more assistance.

The conditions of those unequal alliances may be infinitely varied, But whatever they are, provided the inferior ally reserve to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state, that keeps up an intercourse with others under the authority of the law of nations.

§ 6. Or by treaties of protection.

Consequently a weak state, which, in order to provide for its safety, places itself under the protection of a more powerful one, and engages, in return, to perform several offices equivalent to that protection, without however divesting itself of the right of government and sovereignty, — that state, I say, does not, on this account, cease to rank among the sovereigns who acknowledge no other law than that of nations. (12)

§ 7. Of tributary states.

There occurs no greater difficulty with respect to tributary states; for though the payment of tribute to a foreign power does in some degree diminish the dignity of those states, from its being a confession of their weakness, — yet it suffers their sovereignty to subsist entire. The custom of paying tribute was formerly very common, — the weaker by that means purchasing of their more powerful neighbour an exemption from oppression, or at that price securing his protection, without ceasing to be sovereigns.

§ 8. Of feudatory states.

The Germanic nations introduced another custom — that of requiring homage from a state either vanquished, or too weak to make resistance. Sometimes even, a prince has given sovereignties in fee, and sovereigns have voluntarily rendered themselves feudatories to others.

When the homage leaves independency and sovereign authority in the administration of the state, and only means certain duties to the lord of the fee, or even a mere honorary acknowledgment, it does not prevent the state or the feudatory prince being strictly sovereign. The king of Naples pays homage for his kingdom to the pope, and is nevertheless reckoned among the principal sovereigns of Europe,

§ 9. Of two states subject to the same prince.

Two sovereign states may also be subject to the same prince, without any dependence on each other, and each may retain all its rights as a free and sovereign state. The king of Prussia is sovereign prince of Neufchatel in Switzerland, without that principality being in any manner united to his other dominions; so that the people of Neufchatel, in virtue of their franchises, may serve a foreign power at war with the king of Prussia, provided that the war be not on account of that principality.

§ 10. Of states forming a federal republic.

Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.

Such were formerly the cities of Greece; such are at present the Seven United Provinces of the Netherlands, (13) and such the members of the Helvetic body.

§ 11. Of a state that has passed under the dominion of another.

But a people that has passed under the dominion of another is no longer a state, and can no longer avail itself directly of the law of nations. Such were the nations and kingdoms which the Romans rendered subject to their empire; the generality even of those whom they honoured with the name of friends and allies no longer formed real states. Within themselves they were governed by their own laws and magistrates; but without, they were in every thing obliged to follow the orders of Rome; they dared not of themselves either to make war or contract alliances; and could not treat with nations.

The law of nations is the law of sovereigns; free and independent states are moral persons, whose rights and obligations we are to establish in this treatise.


(10) The student desirous of enlarging his knowledge upon this subject should read Locke on Government; De Lolme on the Constitution; 1 Bla. Com. 47; Sedgwick's Commentaries thereon; and Chitty Junior's Prerogatives of the Crown as regards Sovereignly and different Governments; and see Cours de Droit Public Interne et Externe, Paris, A.D. 1830. — C.

(11) See the advantages and disadvantages of each of those forms of government shortly considered. 1 Bla. Com. 49, 50. — C.

1. Nor shall we examine which of those different kinds of government is the best. It will be sufficient to say in general, that the monarchical form appears preferable to every other, provided the power of the sovereign be limited, and not absolute, — qui [principatus] tum demum regius est, si intra modestiæ et mediocritatis fines se contineat, excessu potestatis, quam imprudentes in dies augere satagunt, minuitur, penitusque corrumpitur. Nos stulti, majoris, potentiæ specie decepti, dilabimur in contrarium, non satis considerantes cam demum tutam esse potentiam quæ viribus modum imponit. The maxim has both truth and wisdom on its side. The author here quotes the saying of Theopompus, king of Sparta, who, returning to his house amidst the acclamations of the people, after the establishment of the Ephori — "You will leave to your children (said his wife) an authority diminished through your fault." "True," replied the king: "I shall leave them a smaller portion of it; but it will rest upon a firmer basis." The Lacedæmonians, during a certain period, had two chiefs to whom they very improperly gave the title of kings. They were magistrates, who possessed a very limited power, and whom it was not unusual to cite before the tribunal of justice, — to arrest, — to condemn to death, — Sweden acts with less impropriety in continuing to bestow on her chief the title of king, although she has circumscribed his power within very narrow bounds. He shares not his authority with a colleague, — he is hereditary, — and the state has, from time immemorial, borne the title of a kingdom. — Edit. A.D. 1797.

(12) This and other rules respecting smaller states sometimes form the subject of consideration even in the Municipal Courts. In case of a revolted colony, or part of a parent or principal state, no subject of another state can legally make a contract with it or assist the same without leave of his own government, before its separate independence has been recognised by his own government, Jones v. Garcia del Rio, 1 Turn, & Russ 297; Thompson v. Powles, 2 Sim. Rep. 202; Yrisarri v. Clement, 2 Car. & P. 223; 11 B. Moore, 308; 3 Bing. 432; and post. — C. (The United states v. Palmer. 3 Wheat. 610. See Cherriot v. Foussat, 3 Binn. 252.)

(13) Of course, the words "at present" refer only to the time when Vattel wrote and it is unnecessary to mention otherwise than thus cursorily the notorious recent changes. — C.


The LAW OF NATIONS - BOOK I.

CHAP. II.

GENERAL PRINCIPLES OF THE DUTIES OF A NATION TOWARDS ITSELF.

§ 12. The objects of this treatise.

IF the rights of a nation spring from its obligations, it is principally from those that relate to itself. It will further appear, that its duties towards others depend very much on its duties towards itself, as the former are to be regulated and measured by the latter. As we are then to treat of the obligations and rights of nations, an attention to order requires that we should begin by establishing what each nation owes to itself.

§ 13. A nation ought to act agreeably to its nature.

The general and fundamental rule of our duties towards ourselves is, that every moral being ought to live in a manner conformable to his nature, naturae conveni enter vivere. (14) A nation is a being determined by its essential attributes, that has its own nature, and can act in conformity to it. There are then actions of a nation as such, wherein it is concerned in its national character, and which are either suitable or opposite to what constitutes it a nation; so that it is not a matter of indifference whether it performs some of those actions, and omits others. In this respect, the Law of Nature prescribes it certain duties. We shall see, in this first book, what conduct a nation ought to observe, in order that it may not be wanting to itself. But we shall first sketch out a general idea of this subject.

§ 14. Of the preservation and perfection of a nation.

He who no longer exists can have no duties to perform: and a moral being is charged with obligations to himself, only with a view to his perfection and happiness: for to preserve and to perfect his own nature, is the sum of all his duties to himself.

The preservation of a nation is found in what renders it capable of obtaining the end of civil society; and a nation is in a perfect state, when nothing necessary is wanting to arrive at that end. We know that the perfection of a thing consists, generally, in the perfect agreement of all its constituent parts to tend to the same end. A nation being a multitude of men united together in civil society — if in that multitude all conspire to attain the end proposed in forming a civil society, the nation is perfect; and it is more or less so, according as it approaches more or less to that perfect agreement. In the same manner its external state will be more or less perfect, according as it concurs with the interior perfection of the nation,

§ 15. What is the end of civil society.

The end or object of civil society is to procure for the citizens whatever they stand in need of for the necessities, the conveniences, the accommodation of life, and, in general, whatever constitutes happiness, — with the peaceful possession of property, a method of obtaining justice with security, and, finally, a mutual defence against all external violence.

It is now easy to form a just idea of the perfection of a state or nation: — every thing in it must conspire to promote the ends we have pointed out.

§ 16. A nation is under an obligation to preserve itself.

In the act of association, by virtue of which a multitude of men form together a state or nation, each individual has entered into engagements with all, to promote the general welfare; and all have entered into engagements with each individual, to facilitate for him the means of supplying his necessities, and to protect and defend him. It is manifest that these reciprocal engagements can no otherwise be fulfilled than by maintaining the political association. The entire nation is then obliged to maintain that association; and as their preservation depends on its continuance, it thence follows that every nation is obliged to perform the duty of self-preservation,

This obligation, so natural to each individual of God's creation, is not derived to nations immediately from nature, but from the agreement by which civil society is formed: it is therefore not absolute, but conditional, — that is to say, it supposes a human act, to wit, the social compact. And as compacts may be dissolved by common consent of the parties — if the individuals that compose a nation should unanimously agree to break the link that binds them, it would be lawful for them to do so, and thus to destroy the state or nation; but they would doubtless incur a degree of guilt, if they took this step without just and weighty reasons; for civil societies are approved by the Law of Nature, which recommends them to mankind, as the true means of supplying all their wants, and of effectually advancing towards their own perfection. Moreover, civil society is so useful, nay so necessary to all citizens, that it may well be considered as morally impossible for them to consent unanimously to break it without necessity. But what citizens may or ought to do — what the majority of them may resolve in certain cases of necessity or of pressing exigency — are questions that will be treated of elsewhere: they cannot be solidly determined without some principles which we have not yet established. For the present, it is sufficient to have proved, that, in general, as long as the political society subsists, the whole nation is obliged to endeavour to maintain it.

§ 17. And to preserve its members.

If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members. The nation owes this to itself, since the loss even of one of its members weakens it, and is injurious to its preservation. It owes this also to the members in particular, in consequence of the very act of association; for those who compose a nation are united for their defence and common advantage; and none can justly be deprived of this union, and of the advantages he expects to derive from it, while he on his side fulfils the conditions. (15)

The body of a nation cannot then abandon a province, a town, or even a single individual who is a part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on the public safety. (16)

§ 18. A nation has a right to every thing necessary for its preservation.

Since then a nation is obliged to preserve itself, it has a right to every thing necessary for its preservation. For the Law of Nature gives us a right to every thing without which we cannot fulfil our obligation; otherwise it would oblige us to do impossibilities, or rather would contradict itself in prescribing us a duty, and at the same time debarring us of the only means of fulfilling it. It will doubtless be here understood, that those means ought not to be unjust in themselves, or such as are absolutely forbidden by the Law of Nature.

As it is impossible that it should ever permit the use of such means, — if on a particular occasion no other present themselves for fulfilling a general obligation, the obligation must, in that particular instance, be looked on as impossible, and consequently void.

§ 19. It ought to avoid every thing that might occasion its destruction.

By an evident consequence from what has been said, a nation ought carefully to avoid, as much as possible, whatever might cause its destruction, or that of the state, which is the same thing.

§ 20. Of its right to every thing that may promote this end.

A nation or state has a right to every thing that can help to ward off imminent danger, and kept at a distance whatever is capable of causing its ruin; and that from the very same reasons that establish its right to the things necessary to its preservation. (17)

§ 21. A nation ought to perfect itself and the state.

The second general duty of a nation towards itself is to labour at its own perfection and that of its state. It is this double perfection that renders a nation capable of attaining the end of civil sociely: it would be absurd to unite in society, and yet not endeavour to promote the end of that union.

Here the entire body of a nation, and each individual citizen, are bound by a double obligation, the one immediately proceeding from nature, and the other resulting from their reciprocal engagements. Nature lays an obligation upon each man to labour after his own perfection; and in so doing, he labours after that of civil society, which could not fail to be very flourishing, were it composed of none but good citizens. But the individual finding in a well-regulated society the most powerful succours to enable him to fulfil the task which Nature imposes upon him in relation to himself, for becoming better, and consequently more happy — he is doubtless obliged to contribute all in his power to render that society more perfect.

All the citizens who form a political society reciprocally engage to advance the common welfare, and as far as possible to promote the advantage of each member. Since then the perfection of the society is what enables it to secure equally the happiness of the body and that of the members, the grand object of the engagements and duties of a citizen is to aim at this perfection, This is more particularly the duty of the body collective in all their common deliberations, and in every thing they do as a body. (18)

§ 22. And to avoid every thing contrary to its perfection.

A nation therefore ought to prevent, and carefully to avoid, whatever may hinder its perfection and that of the state, or retard the progress either of the one or the other. (19)

§ 23. The rights it derives from these obligations.

We may then conclude, as we have done above in regard to the preservation of a state (§ 18), that a nation has a right to every thing without which it cannot attain the perfection of the members and of the state, or prevent and repel whatever is contrary to this double perfection.

§ 24. Examples.

On this subject, the English furnish us an example highly worthy of attention. That illustrious nation distinguishes itself in a glorious manner by its application to every thing that can render the state more flourishing. An admirable constitution there places every citizen in a situation that enables him to contribute to this great end, and everywhere diffuses that spirit of genuine patriotism which zealously exerts itself for the public welfare. We there see private citizens form considerable enterprises, in order to promote the glory and welfare of the nation. And while a bad prince would find his hands tied up, a wise and moderate king finds the most powerful aids to give success to his glorious designs. The nobles and the representatives of the people form a link of confidence between the monarch and the nation, and, concurring with him in every thing that tends to promote the public welfare, partly case him of the burden of government, give stability to his power, and procure him an obedience the more perfect, as it is voluntary. Every good citizen sees that the strength of the state is really the advantage of all, and not that of a single person. (20) Happy constitution! which they did not suddenly obtain: it has cost rivers of blood; but they have not purchased it too dear. May luxury, that pest so fatal to the manly and patriotic virtues, that minister of corruption so dangerous to liberty, never overthrow a monument that does so much honour to human nature — a monument capable of teaching kings how glorious it is to rule over a free people!

There is another nation illustrious by its bravery and its victories. Its numerous and valiant nobility, its extensive and fertile dominions, might render it respectable throughout all Europe, and in a short time it might be in a most flourishing situation, but its constitution opposes this; and such is its attachment to that constitution, that there is no room to expect a proper remedy will ever be applied. In vain might a magnanimous king, raised by his virtues above the pursuits of ambition and injustice, from the most salutary designs for promoting the happiness of his people; — in vain might those designs be approved by the more sensible part, by the majority of the nation; — a single deputy, obstinate, or corrupted by a foreign power, might put a stop to all, and disconcert the wisest and most necessary measures. From an excessive jealousy of its liberty, that nation has taken such precautions as must necessarily place it out of the power of the king to make any attempts on the liberties of the public. But is it not evident that those precautions exceed the end proposed — that they tie the hands of the most just and wise prince, and deprive him of the means of securing the public freedom against the enterprises of foreign powers, and of rendering the nation rich and happy? Is it not evident that the nation has deprived itself of the power of acting, and that its councils are exposed to the caprice or treachery of a single member?

§ 25. A nation ought to know itself.

We shall conclude this chapter, with observing that a nation ought to know itself. (21) Without this knowledge it cannot make any successful endeavours after its own perfection. It ought to have a just idea of its state, to enable it to take the most proper measures; it ought to know the progress it has already made, and what further advances it has still to make, — what advantages it possesses, and what defects it labours under, in order to preserve the former, and correct the latter. Without this knowledge a nation will act at random, and often take the most improper measures. It will think it acts with great wisdom in imitating the conduct of nations that are reputed wise and skilful, — not perceiving that such or such regulation, such or such practice, though salutary to one state, is often pernicious to another. Every thing ought to be conducted according to its nature. Nations cannot be well governed without such regulations as are suitable to their respective characters; and in order to this, their characters ought to be known.


(14) If to particularize may be allowed, we may instance Great Britain. Comparatively, with regard to dimensions. it would be but an insignificant state; but with regard to its insular situation and excellent ports, and its proximity to Europe, and above all the singularly manly, brave, and adventurous character of its natives, it has been capable of acquiring and has acquired powers far beyond its diminutive extent. These being established. It becomes the duty of such a state, and of those exercising the powers of government, to cultivate and improve these natural advantages; and in that view the ancient exclusive navigation system, constituting England the carrier of Europe and the world were highly laudable; and it is to be hoped that a return of the system, injudiciously abandoned, will ere long lake place. — C.

(15) This principle is in every respect recognized and acted upon by our municipal law. It is in respect of, and as a due return for, the protection every natural born subject is entitled to, and actually does, by law, receive from the instant of his birth that all the obligations of allegiance attach upon him, and from which he cannot by any act of his own emancipate himself. This is the principle upon which is founded the rule "Nemo potest exuere patriam," Calvin's case. 7 Coke 25. Co Lit. 129, a; and see an interesting application of that rule in Macdonald's case, Forster's Crown Law 59. — C.

(16) In tracing the consequences of this rule, we shall hereafter perceive how important is the rule itself. — C.

(17) Salus populi supreme est lex. Upon this principle it has been established, that for national defence in war, it is legal to pull down or injure the property of any private individual. See Governors, &c. v. Meredith, 4 Term Rep. 796-7. — C.

(18) In a highly intelligent and cultivated society like England, this principle is exemplified in an extraordinary degree; for in the legislative assembly, members of parliament, without any private interest excepting the approbation of their countrymen, almost destroy themselves by exertion in discussing the improvement of existing regulations; and this indeed even to excess as regards long speeches, sometimes even counteracting their own laudable endeavours. — C.

(19) See Book 1. chap. xxiii. § 283, as to the duty of all nations to prevent the violation of the law of nations. — C.

(20) This is indeed a flattering compliment from Vattel, a foreigner; but certainly it is just; for although, as a commercial nation, it might be supposed that each individual principally labours for his own individual gain; yet when we refer to the spirited employment of capital in building national bridges, canals, railroads, &c. not yielding even 21 per cent., it must be admitted that great public spirit for national good very generally prevails. — C.

(21) This is one of the soundest and most important principles that can be advanced, whether it refers to individuals or to nations, and is essential even to the attainment of the rudiments of true wisdom. Every moral and wise man should enlarge on this principle, and among others study that excellent, but too litlle known work, Mason on Self-Knowledge.


The LAW OF NATIONS - BOOK I.

CHAP. III.

OF THE CONSTITUTION OF A STATE, AND
THE DUTIES AND RIGHTS OF THE NATION IN THIS RESPECT

WE were unable to avoid in the first chapter, anticipating something of the subject of this.

§ 26. Of public authority.

We have seen already that every political society must necessarily establish a public authority to regulate their common affairs, — to prescribe to each individual the conduct he ought to observe with a view to the public welfare, and to possess the means of procuring obedience. This authority essentially belongs to the body of the society; but it may be exercised in a variety of ways; and every society has a right to choose that mode which suits it best.

§ 27. What is the constitution of a state.

The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body politic, how and by whom the people are to be governed, — and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established.

§ 28. The nation ought to choose the best constitution.

The perfection of a state, and its aptitude to attain the ends of society, must then depend on its constitution: consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to choose the best constitution possible, and that most suitable to its circumstances. When it makes this choice, it lays the foundation of its own preservation, safety, perfection, and happiness: — it cannot take too much care in placing these on a solid basis.

§ 29. Of political, fundamental, and civil laws.

The laws are regulations established by public authority, to be observed in society. All these ought to relate to the welfare of the state and of the citizens. The laws made directly with a view to the public welfare are political laws; and in this class, those that concern the body itself and the being of the society, the form of government, the manner in which the public authority is to be exerted, — those, in a word, which together form the constitution of the state, are the fundamental laws.

The civil laws are those that regulate the rights and conduct of the citizens among themselves.

Every nation that would not be wanting to itself, ought to apply its utmost care in establishing these laws, and principally its fundamental laws, — in establishing them, I say, with wisdom in a manner suitable to the genius of the people, and to all the circumstances in which they may be placed: they ought to determine them and make them known with plainness and precision, to the end that they may possess stability, that they may not be eluded, and that they may create, if possible, no dissension — that, on the one hand, he or they to whom the exercise of the sovereign power is committed, and the citizens, on the other, may equally know their duty and their rights. It is not here necessary to consider in detail what that constitution and those laws ought to be: that discussion belongs to public law and politics. Besides, the laws and constitutions of different states must necessarily vary according to the disposition of the people and other circumstances. In the Law of Nations we must adhere to generals. We here consider the duty of a nation towards itself, principally to determine the conduct that it ought to observe in that great society which nature has established among all nations. These duties give it rights, that serve as a rule to establish what it may require from other nations, and reciprocally what others may require from it.

§ 30. Of the support of the constitution and obedience to the laws.

The constitution and laws of a state are the basis of the public tranquility, the firmest support of political authority, and a security for the liberty of the citizens. But this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed: the nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the constitution of the state and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are intrusted. The nation ought constantly to repress them with its utmost vigour and vigilance, as the importance of the case requires.

It is very uncommon to see the laws and constitution of a state openly and boldly opposed: it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men: they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked. It would be rendering nations an important service to show from history how many states have thus entirely changed their nature, and lost their original constitution. This would awaken the attention of mankind: — impressed thenceforward with this excellent maxim (no less essential in politics than in morals) principiis obsta, — they would no longer shut their eyes against innovations, which, though inconsiderable in themselves, may serve as steps to mount to higher and more pernicious enterprises.

§ 31. The rights of a nation with respect to its constitution and government.

The consequences of a good or bad constitution being of such importance, and the nation being strictly obliged to procure, as far as is possible, the best and most convenient one, it has a right to every thing necessary to enable it to fulfil this obligation (§ 18). It is then manifest that a nation has an indisputable right to form, maintain, and perfect its constitution, to regulate at pleasure every thing relating to the government, and that no person can have a just right to hinder it. Government is established only for the sake of the nation, with a view to its safety and happiness.

§ 32. She may reform the government.

If any nation is dissatisfied with the public administration, it may apply the necessary remedies, and reform the government. But observe that I say "the nation;" for I am very far from meaning to authorize a few malcontents or incendiaries to give disturbance to their governors by exciting murmurs and seditions. None but the body of a nation have a right to check those at the helm when they abuse their power. When the nation is silent and obeys, the people are considered as approving the conduct of their superiors, or at least finding it supportable; and it is not the business of a small number of citizens to put the state in danger, under the pretense of reforming it.

§ 33. And may change the constitution.

In virtue of the same principles, it is certain that it the nation is uneasy under its constitution, it has a right to change it.

There can be no difficulty in the case, if the whole nation be unanimously inclined to make this change. But it is asked, what is to be done if the people are divided? In the ordinary management of the state, the opinion of the majority must pass without dispute for that of the whole nation: otherwise it would be almost impossible for the society ever to take any resolution. It appears then, by parity of reasoning, that a nation may change the constitution of the state by a majority of votes; and whenever there is nothing in this change that can be considered as contrary to the act of civil association, or to the intention of those united under it, the whole are bound to conform to the resolution of the majority. (22) But if the question be, to quit a form of government to which alone it appeared that the people were willing to submit on their entering into the bonds of society, — if the greater part of a free people, after the example of the Jews in the time of Samuel, are weary of liberty, and resolved to submit to the authority of a monarch, — those citizens who are more jealous of that privilege, so invaluable to those who have tasted it, though obliged to suffer the majority to do as they please, are under no obligation at all to submit to the new government: they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.

§ 34. Of the legislative power, and whether it can change the constitution.

Here, again, a very important question presents itself. It essentially belongs to the society to make laws both in relation to the manner in which it desires to be governed, and to the conduct of the citizens: this is called the legislative power. The nation may intrust the exercise of it to the prince, or to an assembly and the prince jointly; who have then a right to make new laws and to repeal old ones. (23) It is asked, whether their power extends to the fundamental laws — whether they may change the constitution of a state? The principals we have laid down lead us to decide with certainty, that the authority of those legislators does not extend so far, and that they ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them power to change them. For the constitution of the state ought to possess stability: and since that was first established by the nation, which afterwards intrusted certain persons with the legislative power, the fundamental laws are expected from their commission. It is visible that the society only intended to make provision for having the state constantly furnished with laws suited to particular conjunctures, and, for that purpose, gave the legislature the power of abrogating the ancient civil and political laws that were not fundamental, and of making new ones; but nothing leads us to think that it meant to submit the constitution itself to their will. In short, it is from the constitution that those legislators derive their power: how then can they change it without destroying the foundation of their own authority? By the fundamental laws of England, the two houses of parliament, in concert with the king, exercise the legislative power: but, if the two houses should resolve to suppress themselves, and to invest the king with full and absolute authority, certainly the nation would not suffer it. And who would dare to assert that they would not have a right to oppose it? But if the parliament entered into a debate on making so considerable a change, and the whole nation was voluntarily silent upon it, this would be considered as an approbation of the act of its representatives.

§ 35. The nation ought not to attempt it without great caution.

But in treating here of the change of the constitution, we treat only of the right: the question of expediency belongs to politics. We shall therefore only observe in general, that great changes in a state being delicate and dangerous operations, and frequent changes being in their own nature prejudicial, a people ought to be very circumspect in this point, and never be inclined to make innovations without the most pressing reasons, or an absolute necessity. The fickleness of the Athenians was ever inimical to the happiness of the republic, and at length proved fatal to that liberty of which they were so jealous, without knowing, how to enjoy it.

§ 36. It is the judge of all disputes relating to the government.

We may conclude from what has been said (§ 33), that if any disputes arise in a state respecting the fundamental laws, the public administration, or the rights of the different powers of which it is composed, it belongs to the nation alone to judge and determine them conformably to its political constitution.

§ 37. No foreign power has a right to interfere.

In short, all these affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices unless requested to do it, or induced by particular reasons. If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury.


(22) In 1 Bla. Com, 51-2, it is contended, that, unless in cases where the natural law or conscience dictates the observance of municipal laws, it is optional, in a moral view, to observe the positive law, or to pay the penalty where detected in the breach: but that doctrine, as regards the moral duty to observe laws, has been justly refuted. See Sedgwick's Commentaries, 61; 2 Box. & Pul. 375; 5 Bar. & Ald. 341; sed vide 13 Ves. jun. 215, 316. — C.

(23) Thus, during the last war, English acts of Parliament delegated to the king in council all the power of making temporary orders and laws regulating commerce. So by a bill of 3 Will. 4, power was proposed to be given to eight of the judges to make rules and orders respecting pleading, these not being considered unconstitutional delegations of powers of altering the fundamental laws, part of the constitution itself; but even then, the rules or orders so made are not absolutely to become law until they have been submitted to, and not objected against in parliament during six weeks. — C.


The LAW OF NATIONS - BOOK I.

CHAP. IV.

OF THE SOVEREIGN, HIS OBLIGATIONS, AND HIS RIGHTS.

§ 38. Of the sovereign.

THE reader cannot expect to find here a long deduction of the rights of sovereignty, and the functions of a prince. These are to be found in treatises on the public law. In this chapter we only propose to show, in consequence of the grand principles of the law of nations, what a sovereign is, and to give a general idea of his obligations and his rights.

We have said that the sovereignty is that public authority which commands in civil society, and orders and directs what each citizen is to perform, to obtain the end of its institution. This authority originally and essentially belonged to the body of the society, to which each member submitted, and ceded his natural right of conducting himself in every thing as he pleased, according to the dictates of his own understanding, and of doing himself justice. But the body of the society does not always retain in its own hands this sovereign authority: it frequently intrusts it to a senate, or to a single person. That senate, or that person, is then the sovereign.

§ 39. It is solely established for the safety and advantage of society.

It is evident that men form a political society, and submit to laws, solely for their own advantage and safety. The sovereign authority is then established only for the common good of all the citizens; and it would be absurd to think that it could change its nature on passing into the hands of a senate or a monarch. Flattery, therefore, cannot, without rendering itself equally ridiculous and odious, deny that the sovereign is only established for the safety and advantage of society.

A good prince, a wise conductor of society, ought to have his mind impressed with this great truth, that the sovereign power is solely intrusted to him for the safety of the state, and the happiness of all the people; that he is not permitted to consider himself as the principal object in the administration of affairs, to seek his own satisfaction, or his private advantage; but that he ought to direct all his views, all his steps, to the greatest advantage of the state and people who have submitted to him.1 What a noble sight it is to see a king of England rendering his parliament an account of his principal operations — assuring that body, the representatives of the nation, that he has no other end in view than the glory of the state and the happiness of his people — and affectionately thanking all who concur with him in such salutary views! Certainly, a monarch who makes use of this language, and by his conduct proves the sincerity of his professions, is, in the opinion of the wise, the only great man. But, in most kingdoms, a criminal flattery has long since caused these maxims to be forgotten. A crowd of servile courtiers easily persuade a proud monarch that the nation was made for him, and not he for the nation. He soon considers the kingdom as a patrimony that is his own property, and his people as a herd of cattle from which he is to derive his wealth, and which he may dispose of to answer his own views, and gratify his passions. Hence those fatal wars undertaken by ambition, restlessness, hatred, and pride; — hence those oppressive taxes, whose produce is dissipated by ruinous luxury, or squandered upon mistresses and favourites; — hence, in fine, are important posts given by favour, while public merit is neglected, and every thing that does not immediately interest the prince is abandoned to ministers and subalterns. Who can, in this unhappy government, discover an authority established for the public welfare? A great prince will be on his guard even against his virtues.

Let us not say, with some writers, that private virtues are not the virtues of kings — a maxim of superficial politicians, or of those who are very inaccurate in their expressions. Goodness, friendship, gratitude, are still virtues on the throne; and would to God they were always to be found there! But a wise king does not yield an undiscerning obedience to their impulse. He cherishes them, he cultivates them in his private life; but in state affairs he listens only to justice and sound policy. And why? because he knows that the government was intrusted to him only for the happiness of society, and that, therefore, he ought not to consult his own pleasure in the use he makes of his power. He tempers his goodness with wisdom; he gives to friendship his domestic and private favours; he distributes posts and employments according to merit; public rewards to services done to the state. In a word, he uses the public power only with a view to the public welfare. All this is comprehended in that fine saying of Lewis XII.: — "A king of France does not revenge the injuries of a duke of Orleans."

§ 40. Of his representative character.

A political society is a moral person (Prelim. § 2) inasmuch as it has an understanding and a will, of which it makes use for the conduct of its affairs, and is capable of obligations and rights. When, therefore, a people confer the sovereignty on any one person, they invest him with their understanding and will, and make over to him their obligations and rights, so far as relates to the administration of the state, and to the exercise of the public authority. The sovereign, or conductor of the state, thus becoming the depositary of the obligations and rights relative to government, in him is found the moral person, who, without absolutely ceasing to exist in the nation, acts thenceforwards only in him and by him. Such is the origin of the representative character attributed to the sovereign. He represents the nation in all the affairs in which he may happen to be engaged as a sovereign. It does not debase the dignity of the greatest monarch to attribute to him this representative character; on the contrary, nothing sheds a greater lustre on it, since the monarch thus unites in his own person all the majesty that belongs to the entire body of the nation.

§ 41. He is intrusted with the obligations of the nation, and invested with its rights.

The sovereign, thus clothed with the public authority, with every thing that constitutes the moral personality of the nation, of course becomes bound by the obligations of that nation, and invested with its rights.

§ 42 His duty with respect to the preservation and perfection of the nation.

All that has been said in Chap. II. of the general duties of a nation towards itself particularly regards the sovereign. He is the depositary of the empire, and the power of commanding whatever conduces to the public welfare; he ought, therefore, as a tender and wise father, and as a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect; to better its state, and to secure it, as far as possible, against every thing that threatens its safety or its happiness.

§ 43. His rights in this respect.

Hence all the rights which a nation derives from its obligation to preserve and perfect itself, and to improve its state, (see §§ 18, 20, and 23, of this book); all these rights, I say, reside in the sovereign, who is therefore indifferently called the conductor of the society, superior, prince, &c.

§ 44. He ought to know the nation.

We have observed above, that every nation ought to know itself. This obligation devolves on the sovereign, since it is he who is to watch over the preservation and perfection of the nation. The duty which the law of nature here imposes on the conductors of nations is of extreme importance, and of considerable extent. They ought exactly to know the whole country subject to their authority; its qualities, defects, advantages, and situation with regard to the neighbouring states; and they ought to acquire a perfect knowledge of the manners and general inclinations of their people, their virtues, vices, talents, &c. All these branches of knowledge are necessary to enable them to govern properly.

§ 45. The extent of his power.

The prince derives his authority from the nation; he possesses just so much of it as they have thought proper to intrust him with. If the nation has plainly and simply invested him with the sovereignty, without limitation or division, he is supposed to be invested with all the prerogatives, without which the sovereign command or authority could not be exerted in the manner most conducive to the public welfare. These are called regal prerogatives, or the prerogatives of majesty.

§ 46. The prince ought to respect and support the fundamental laws.

But when the sovereign power is limited and regulated by the fundamental laws of the state, those laws show the prince the extent and bounds of his power, and the manner in which he is to exert it. The prince is therefore strictly obliged not only to respect, but also to support them. The constitution and the fundamental laws are the plan on which the nation has resolved to labour for the attainment of happiness; the execution is intrusted to the prince. Let him religiously follow this plan; let him consider the fundamental laws as inviolable and sacred rules; and remember that the moment he deviates from them, his commands become unjust, and are but a criminal abuse of the power with which he is intrusted. He is, by virtue of that power, the guardian and defender of the laws: and while it is his duty to restrain each daring violator of them, ought he himself to trample them under foot?2

§ 47. He may change the laws not fundamental.

If the prince be invested with the legislative power, he may, according to his wisdom, and when the public advantage requires it, abolish those laws that are not fundamental, and make now ones. (See what we have said on this subject in the preceding chapter, § 34.)

§ 48. He ought to maintain and observe the existing laws.

But while these laws exist, the sovereign ought religiously to maintain and observe them. They are the foundation of the public tranquility, and the firmest support of the sovereign authority. Every thing is uncertain, violent, and subject to revolutions, in those unhappy states where arbitrary power has placed her throne. It is therefore the true interest of the prince, as well as his duty, to maintain and respect the laws; he ought to submit to them himself. We find this truth established in a piece published by order of Lewis XIV., one of the most absolute princes that ever reigned in Europe. "Let it not be said that the sovereign is not subject to the laws of his state, since the contrary proposition is one of the truths of the law of nations, which flattery has sometimes attacked, and which good princes have always defended, as a tutelar divinity of their states."3

§ 49. In what sense he is subject to the laws.

But it is necessary to explain this submission of the prince to the laws. First, he ought, as we have just seen, to follow their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, "in his private affairs;" for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of them, whenever natural justice and equity will permit him. Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by his example. But, sixthly, he is certainly above all civil penal laws, The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretence of a fault that does not directly concern the government of the state.

§ 50. His person is sacred and inviolable.

It is not sufficient that the prince be above the penal laws: even the interest of nations requires that we should go something farther. The sovereign is the soul of the society; if he be not held in veneration by the people, and in perfect security, the public peace, and the happiness and safety of the state, are in continual danger. The safety of the nation then necessarily requires that the person of the prince be sacred and inviolable. The Roman people bestowed this privilege on their tribunes, in order that they might meet with no obstruction in defending them, and that no apprehension might disturb them in the discharge of their office. The cares, the employments of a sovereign, are of much greater importance than those of the tribunes were, and not less dangerous, if he be not provided with a powerful defence. It is impossible even for the most just and wise monarch not to make malcontents; and ought the state to continue exposed to the danger of losing so valuable a prince by the hand of an assassin? The monstrous and absurd doctrine, that a private person is permitted to kill a bad prince, deprived the French, in the beginning of the last century, of a hero who was truly the father of his people.4 Whatever a prince may be, it is an enormous crime against a nation to deprive them of a sovereign whom they think proper to obey.5

§ 51. But the nation may curb a tyrant, and withdraw itself from his obedience.

But this high attribute of sovereignty is no reason why the nation should not curb an insupportable tyrant, pronounce sentence on him (still respecting in his person the majesty of his rank) and withdraw itself from his obedience. To this indisputable right a powerful republic owes its birth. The tyranny exercised by Philip II. in the Netherlands excited those provinces to rise: seven of them, closely confederated, bravely maintained their liberties, under the conduct of the heroes of the House of Orange; and Spain, after several vain and ruinous efforts, acknowledged them sovereign and independent states. If the authority of the prince is limited and regulated by the fundamental laws, the prince, on exceeding the bounds prescribed him, commands without any right and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts. As soon as a prince attacks the constitution of the state, he breaks the contract which bound the people to him; the people become free by the act of the sovereign, and can no longer view him but as a usurper who would load them with oppression. This truth is acknowledged by every sensible writer, whose pen is not enslaved by fear, or sold for hire. But some celebrated authors maintain, that if the prince is invested with the supreme command in a full and absolute manner, nobody has a right to resist him, much less to curb him, and that naught remains for the nation but to suffer and obey with patience. This is founded upon the supposition that such a sovereign is not accountable to any person for the manner in which he governs, and that if the nation might control his actions and resist him where it thinks them unjust, his authority would no longer be absolute; which would be contrary to this hypothesis. They say that an absolute sovereign completely possesses all the political authority of the society, which nobody can oppose; that, if he abuses it, he does ill indeed, and wounds his conscience; but that his commands are not the less obligatory, as being founded on a lawful right to command; that the nation, by giving him absolute authority, has reserved no share of it to itself, and has submitted to his discretion, &c. We might be content with answering, that in this light there is not any sovereign who is completely and fully absolute. But in order to remove all these vain subtleties, let us remember the essential end of civil society. Is it not to labour in concert for the common happiness of all? Was it not with this view that every citizen divested himself of his rights, and resigned his liberty? Could the society make such use of its authority as irrevocably to surrender itself and all its members to the discretion of a cruel tyrant? No, certainly, since it would no longer possess any right itself, if it were disposed to oppress a part of the citizens. When, therefore, it confers the supreme and absolute government, without an express reserve, it is necessarily with the tacit reserve that the sovereign shall use it for the safety of the people, and not for their ruin. If he becomes the scourge of the state, he degrades himself; he is no better than a public enemy, against whom the nation may and ought to defend itself; and if he has carried his tyranny to the utmost height, why should even the life of so cruel and perfidious an enemy be spared? Who shall presume to blame the conduct of the Roman senate, that declared Nero an enemy to his country?

But it is of the utmost importance to observe, that this judgment can only be passed by the nation, or by a body which represents it, and that the nation itself cannot make any attempt on the person of the sovereign, except in cases of extreme necessity, and when the prince, by violating the laws, and threatening the safety of his people, puts himself in a state of war against them. It is the person of the sovereign, not that of an unnatural tyrant and a public enemy, that the interest of the nation declares sacred and inviolable. We seldom see such monsters as Nero. In the more common cases, when a prince violates the fundamental laws; when he attacks the liberties and privileges of his subjects; or (if he be absolute) when his government, without being carried to extreme violence, manifestly tends to the ruin of the nation; it may resist him, pass sentence on him, and withdraw from his obedience; but though this may be done, still his person should be spared, and that for the welfare of the state.5 [b] It is above a century since the English took up arms against their king, and obliged him to descend from the throne. A set of able, enterprising men, spurred on by ambition, took advantage of the terrible ferment caused by fanaticism and party spirit; and Great Britain suffered her sovereign to die unworthily on a scaffold. The nation coming to itself discovered its former blindness. If, to this day, it still annually makes a solemn atonement, it is not only from the opinion that the unfortunate Charles I. did not deserve so cruel a fate, but, doubtless, from a conviction that the very safety of the state requires the person of the sovereign to be held sacred and inviolable, and that the whole nation ought to render this maxim venerable, by paying respect to it when the care of its own preservation will permit.

One word more on the distinction that is endeavoured to be made here in favour of an absolute sovereign. Whoever has well weighed the force of the indisputable principles we have established, will be convinced, that when it is necessary to resist a prince who has become a tyrant, the right of the people is still the same, whether that prince was made absolute by the laws, or was not; because that right is derived from what is the object of all political society — the safety of the nation, which is the supreme law.6 But, if the distinction of which we are treating is of no moment with respect to the right, it can be of none in practice, with respect to expediency. As it is very difficult to oppose an absolute prince, and it cannot be done without raising great disturbances in the state, and the most violent and dangerous commotions, it ought to be attempted only in cases of extremity, when the public miseries are raised to such a height that the people may say with Tacitus, miseram pacem vel bello bene niutari, that it is better to expose themselves to a civil war than to endure them. But if the prince's authority is limited, if it in some respects depends on a senate, or a parliament that represents the nation, there are means of resisting and curbing him, without exposing the state to violent shocks. When mild and innocent remedies can be applied to the evil, there can be no reason for waiting until it becomes extreme.

§ 52. Arbitration between the king and his subjects.

But however limited a prince's authority may be, he is commonly very jealous of it; it seldom happens that he patiently suffers resistance, and peaceably submits to the judgement of his people. Can he want support, while he is the distributor of favours? We see too many base and ambitious souls, for whom the state of a rich and decorated slave has more charms than that of a modest and virtuous citizen. It is therefore always difficult for a nation to resist a prince and pronounce sentence on his conduct, without exposing the state to dangerous troubles, and to shocks capable of overturning it. This has sometimes occasioned a compromise between the prince and the subjects, to submit to the decision of a friendly power all the disputes that might arise between them. Thus the kings of Denmark, by solemn treaties, formerly referred to those of Sweden the differences that might arise between them and their senate; and this the kings of Sweden have also done with regard to those of Denmark. The princes and states of West Friesland, and the burgesses of Embden, have in the same manner constituted the republic of the United Provinces the judge of their differences. The princes and the city of Neufchatel established, in 1406, the canton of Berne perpetual judge and arbitrator of their disputes. Thus also, according to the spirit of the Helvetic confederacy, the entire body takes cognisance of the disturbances that arise in any of the confederated states, though each of them is truly sovereign and independent.

§ 53. The obedience which subjects owe to a sovereign.

As soon as a nation acknowledges a prince for its lawful sovereign, all the citizens owe him a faithful obedience. He can neither govern the state, nor perform what the nation expects from him, if he be not punctually obeyed. Subjects then have no right, in doubtful cases, to examine the wisdom or justice of their sovereign's commands; this examination belongs to the prince: his subjects ought to suppose (if there be a possibility of supposing it) that all his orders are just and salutary: he alone is accountable for the evil that may result from them.

§ 54. In what cases they may resist him.

Nevertheless this ought not to be entirely a blind obedience. No engagement can oblige, or even authorize, a man to violate the law of nature. All authors who have any regard to conscience or decency agree that no one ought to obey such commands as are evidently contrary to that sacred law. Those governors of places who bravely refused to execute the barbarous orders of Charles IX. on the memorable day of St. Bartholomew, have been universally praised; and the court did not dare to punish them, at least openly. "Sire," said the brave Orte, governor of Bayonne, in his letter, "I have communicated your majesty's command to your faithful inhabitants and warriors in the garrison; and I have found there only good citizens and brave soldiers, but not a single executioner: wherefore both they and I most humbly entreat your majesty to be pleased to employ our hands and our lives in things that are possible, however hazardous they may be; and we will exert ourselves to the last drop of our blood in the execution of them."7 The Count de Tende, Charny, and others, replied to those who brought them the orders of the court, "that they had too great a respect for the king, to believe that such barbarous orders came from him."

It is more difficult to determine in what cases a subject may not only refuse to obey, but even resist a sovereign, and oppose his violence by force. When a sovereign does injury to any one, he acts without any real authority; but we ought not thence to conclude hastily that the subject may resist him. The nature of sovereignty, and the welfare of the state, will not permit citizens to oppose a prince whenever his commands appear to them unjust or prejudicial. This would be falling back into the state of nature, and rendering government impossible. A subject ought patiently to suffer from the prince doubtful wrongs, and wrongs that are supportable; the former, because whoever has submitted to the decision of a judge, is no longer capable of deciding his own pretensions; and as to those that are supportable, they ought to be sacrificed to the peace and safety of the state, on account of the great advantages obtained by living in society. It is presumed, as matter of course, that every citizen has tacitly engaged to observe this moderation; because, without it, society could not exist. But when the injuries are manifest and atrocious, — when a prince, without any apparent reason attempts to deprive us of life, or of those things the loss of which would render life irksome, who can dispute our right to resist him? Self-preservation is not only a natural right, but an obligation imposed by nature, and no man can entirely and absolutely renounce it. And though he might give it up, can he be considered as having done it by his political engagements since he entered into society only to establish his own safety upon a more solid basis? The welfare of society does not require such a sacrifice; and, as Barbeyrac well observes in his notes on Grotius, "If the public interest requires that those who obey should suffer some inconvenience, it is no less for the public interest that those who command should be afraid of driving their patience to the utmost extremity."8 The prince who violates all laws, who no longer observes any measures, and who would in his transports of fury take away the life of an innocent person, divests himself of his character, and is no longer to be considered in any other light than that of an unjust and outrageous enemy, against whom his people are allowed to defend themselves. The person of the sovereign is sacred and inviolable: but he who, after having lost all the sentiments of a sovereign, divests himself even of the appearances and exterior conduct of a monarch, degrades himself: he no longer retains the sacred character of a sovereign, and cannot retain the prerogatives attached to that exalted rank. However, if this prince is not a monster, — if he is furious only against us in particular, and from the effects of a sudden transport or a violent passion, and is supportable to the rest of the nation, the respect we ought to pay to the tranquility of the state is such, and the respect due to sovereign majesty so powerful, that we are strictly obliged to seek every other means of preservation, rather than to put his person in danger. Every one knows the example set by David: he fled, — he kept himself concealed, to secure himself from Saul's fury, and more than once spared the life of his persecutor. When the reason of Charles VI. of France was suddenly disordered by a fatal accident, he in his fury killed several of those who surrounded him: none of them thought of securing his own life at the expense of that of the king; they only endeavoured to disarm and secure him. They did their duty like men of honour and faithful subjects, in exposing their lives to save that of this unfortunate monarch: such a sacrifice is due to the state and to sovereign majesty: furious from the derangement of his faculties, Charles was not guilty: he might recover his health, and again become a good king.

§ 55. Of ministers.

What has been said is sufficient for the intention of this work: the reader may see these questions treated more at large in many books that are well known. We shall conclude this subject with an important observation. A sovereign is undoubtedly allowed to employ ministers to ease him in the painful offices of government; but he ought never to surrender his authority to them. When a nation chooses a conductor, it is not with a view that he should deliver up his charge into other hands. Ministers ought only to be instruments in the hands of the prince; he ought constantly to direct them, and continually endeavour to know whether they act according to his intentions. If the imbecility of age. or any infirmity, render him incapable of governing, a regent ought to be nominated, according to the laws of the state: but when once the sovereign is capable of holding the reins, let him insist on being served, but never suffer himself to be superseded. The last kings of France of the first race surrendered to government and authority to the mayors of the palace: thus becoming mere phantoms, they justly lost the title and honours of a dignity of which they had abandoned the functions. The nation has every thing to gain in crowning an all-powerful minister, for he will improve that soil as his own inheritance, which he plundered whilst he only reaped precarious advantages from it.


1. The last words of Louis VI. to his son Louis VII. were — "Remember, my son, that royalty is but a public employment of which you must render a rigorous account to him who is the sole disposer of crowns and sceptres," Abbe Velley's Hist. of France, Vol. III. p. 65.

Timur-Bec declared (as he often before had done on similar occasions) that "a single hour's attention devoted by a prince to the care of his state, is of more use and consequence than all the homage and prayers he could offer up to God during his whole life." The same sentiment is found in the Koran. Hist. of Timur-Bec, Book II. ch. xli.

2. Neque enim se princeps reipulicae et singulorum dominum arbitrabitur, quamvis assentatoribus id in aurem insusurrantibus, sed rectorem mercede a civibus designata, quam augere, nisi ipsis volentibus, nefas existimabit. Ibid. c. v. — From this principle it follows that the nation is superior to the sovereign. Quod caput est, sit principi persuasum totius reipulicae majorem quam ipsius unius auctoritatem esse: neque pessimis hominibus credat diversum affirmantibus gratificandi studio; quae magna pernicies est. Ibid.

In some countries, formal precautions are taken against the abuse of power. — "Reflecting among other things (says Grotius), that princes are often found to make no scruple of violating their promises under the state pretext of the public good, the people of Brabant, in order to obviate that inconvenience, established the custom of never admitting their prince to the possession of the government without having previously made with him a covenant, that, whenever he may happen to violate the laws of the country, they shall be absolved from the oath of obedience they had sworn to him, until ample reparation be made for the outrages committed. The truth of this is confirmed by the example of past generations, who formerly made effectual use of arms and decrees to reduce within proper bounds such of their sovereigns as had transgressed the line of duty, whether through their own licentiousness or the artifices of their flatterers. Thus it happened to John the Second; nor would they consent to make peace with him or his successors, until those princes had entered into a solemn engagement to secure the citizens in the enjoyment of their privileges." Annals of the Netherlands, Book II. note, edit A.D. 1797.

3. A treatise on the right of the queen to several states of the Spanish monarchy, 1667, in 12 mo. Part II. p. 191.

4. Since the above was written, France has witnessed a renewal of those horrors. She sighs at the idea of having given birth to a monster capable of violating the majesty of kings in the person of a prince, whom the qualities of his heart entitle to the love of his subjects and the veneration of foreigners. [The author alludes to the attempt made by Damien to assassinate Louis XV.] Note, edit a.d. 1797.

5. In Mariana's work, above quoted, I find (chap. vii. towards the end) a remarkable instance of the errors into which we are apt to be led by a subtle sophistry destitute of sound principles. That author allows us to poison a tyrant, and even a public enemy, provided it be done without obliging him, either by force or through mistake or ignorance, to concur in the act that causes his own death, — which would be the case, for instance, in presenting him a poisoned draught. For (says he), in thus leading him to an act of suicide, although committed through ignorance, we make him violate the natural law which forbids each individual to lake away his own life; and the crime of him who thus unknowingly poisons himself redounds on the real author, — the person who administered the poison. — No cogatur tantum sciens aut imprudens sibi conscire mortem; quod esse nefas judicamus, veneno in potu aut cibo, quod hauriat qui perimendus est, aut simili alia retemperato. A fine reason, truly! Was Mariana disposed to insult the understandings of his readers, or only desirous of throwing a slight varnish over the detestable doctrine contained in that chapter? — Note, edit. A.D. 1797.

5 [b]. Dissimulandum censeo quatenus salus publica patiatur, privatimque corruptis moribus princeps continagat; alioquin si rempublicam in periculum vocat, si patriae religionis contemptor existit, neque mediciniam ullam recipit, abdicandum judico, alium substituendum; quod in Hispania non semel fuisse factum scimus: quasi fera irritata, ominium telis peti debet, cum, humanitate abdicata, tyrannum induit. Sic Petro rege ob immanitatem dejecto publice, Henricus ejus frater, quamvis ex impari matre, regnum obtinuit. Sic Henrico hujus abnepote ob ignaviam pravosque mores abdicato procerum suffragiis, primum Alfonsus ejus frater, recte an secus non disputo, sed tamen in tenera actate rex est proclamatus: deinde defuncto Alfonso, Elisabetha ejas soror, Henrico invito, rerum summam ad se traxit, regio tantum nomine abstinens dum ille vixit. Mariana, de Rege et Regis Institut. Lib. 1. c. iii.

To this authority, furnished by Spain, join that of Scotland, proved by the letter of the barons to the pope, dated April 6, 1320, requesting him to prevail on the king of England to desist from his enterprises against Scotland. After having spoken of the evils they had suffered from him. they add — A quibus malis innumeris, ipso juvante qui post vulnera medetur et sanat, liberati sumus per serenissimum principem regem et dominum nostrum. dominum Robertum, qui pro populo et haereditate suis de manibus inimicorm liberandis, quasi alter Maccabaeus aut Josue, labores et taedia, inedias et pericula laeto sustinuit animo. Quem etiam divina dispositio, et (juxta leges et consuetudines nostras, quas usque ad mortem sustinere volumus) juris successio, et debitus nostrorum consensus et assensus nostrum fecerunt principem atque regem: cui, tanquam liii per quem salus in populo facta est, pro nostra libertate tuenda, tam jure quam meritis tenemur, et volumus in omnibus adhaerere. Quem, si ab inceptis desistet, regi Anglorum aut Anglis nos aut regnum nostrum volens subjicere, tanquam inimicum nostrum et sui nostrique juris subversorem, statim expellere nitemur, et alium regem nostrum, qui ad defensionem nostram sufficiet, faciemus: quia quamdiu centum viri remanserint, numquam Anglorum dominio aliquatenus volumus subjugari, Non enim propter gloriam, divitias, aut honores pugnamus, sed propter libertatem solummodo, quam remo, bonus nisi simul eum vita amittit.

"In the year 1581" (says Grotius, Ann. Book III.) "the confederated provinces of the Netherlands — after having for nine years continued to wage war against Philip the Second, without ceasing to acknowledge him as their sovereign — at length solemnly deprived him of the authority he had possessed over their country, because he had violated their laws and privileges," The author afterwards observes, that "France, Spain herself, England, Sweden, Denmark, furnish instances of kings deposed by their people; so that there are at present few sovereigns in Europe whose right to the crown rests on any other foundation than the right which the people possess of divesting their sovereign of his power when he makes an ill use of it," Pursuant to this idea, the United Provinces, in their justificatory letters on that subject, addressed to the princes of the empire and the king of Denmark — after having enumerated the oppressive acts of the king of Spain, added — "Then, by a mode which has been often enough adopted even by those nations that now live under kingly government, we wrested the sovereignty from him whose actions were all contrary to the duty of a prince." Ibid. — Note, edit A.D. 1797.

6. Populi patroni non pauciora neque mis ora praesidia habent. Certe a republica, unde ortum habet regia potestas, rebus exigentibus, regens in jus vocari potest, et, si sanitatem respuat, principatu spoiliari; neque ita in principem jura potestatis transtuilit, ut non sibi majorem reservârit potestatem. Ibid. cap. vi.

Est tamen salutaris cogitatio, ut sit principibus persuasum, si rempublicam oppresserint, si vitiis et foeditate intolerandi erunt, ea se conditione vivere, ut non jure tantum, sed cum laude et gloria, perimi possint. Ibid. — Note. edit. A.D. 1797.

7. Mezeray's History of France, vol. ii. p. 1107.

8. De Jure Belli & Pacis. lib. i. cap. lv. § 11, n. 2


The LAW OF NATIONS - BOOK I.

CHAP. V.

OF STATES ELECTIVE, SUCCESSIVE OR HEREDITARY, AND
OF THOSE CALLED PATRIMONIAL.

§ 56 Of elective states.

WE have seen in the preceding chapter, that it originally belongs to a nation to confer the supreme authority, and to choose the person by whom it is to be governed. If it confers the sovereignty on him for his own person only, reserving to itself the right of choosing a successor after the sovereign's death, the state is elective. As soon as the prince is elected according to the laws, he enters into the possession of all the prerogatives which those laws annex to his dignity.

§ 57. Whether elective kings are real sovereigns.

It has been debated, whether elective kings and princes are real sovereigns. But he who lays any stress on this circumstance must have only a very confused idea of sovereignty. The manner in which a prince obtains his dignity has nothing to do with determining its nature. We must consider, first, whether the nation itself forms an independent society (see chap 1), and secondly, what is the extent of the power it has intrusted to the prince. Whenever the chief of an independent state really represents his nation, he ought to be considered as a true sovereign (§ 40), even though his authority should be limited in several respects.

§ 58. Of successive and hereditary states. The origin of the right of succession.

When a nation would avoid the troubles which seldom fail to accompany the election of a sovereign, it makes its choice for a long succession of years, by establishing the right of succession, or by rendering the crown hereditary in a family, according to the order and rules that appear most agreeable to that nation. The name of an Hereditary State or Kingdom is given to that where the successor is appointed by the same law that regulates the successions of individuals. The Successive Kingdom is that where a person succeeds according to a particular fundamental law of the state. Thus the lineal succession, and of males alone, is established in France.

§ 59. Other origins of this right.

The right of succession is not always the primitive establishment of a nation; it may have been introduced by the concession of another sovereign, and even by usurpation. But when it is supported by long possession, the people are considered as consenting to it; and this tacit consent renders it lawful, though the source be vicious. It rests then on the foundation we have already pointed out — a foundation that alone is lawful and incapable of being shaken, and to which we must ever revert.

§ 60. Other sources which still amount to the same thing.

The same right, according to Grotius and the generality of writers, may be derived from other sources, as conquest, or the right of a proprietor, who, being master of a country, should invite inhabitants to settle there, and give them lands, on condition of their acknowledging him and his heirs for their sovereigns. But as it is absurd to suppose that a society of man can place themselves in subjection otherwise than with a view to their own safety and welfare, and still more that they can bind their posterity on any other footing, it ultimately amounts to the same thing; and it must still be said that the succession is established by the express will, or the tacit consent of the nation, for the welfare and safety of the state.

§ 61. A nation may change the order of the succession.

It thus remains an undeniable truth, that in all cases the succession is established or received only with a view to the public welfare and the general safety. If it happened then that the order established in this respect became destructive to the state, the nation would certainly have a right to change it by a new law. Salus populi supreme lex, the safety of the people is the supreme law; and this law is agreeable to the strictest justice, the people having united in society only with a view to their safety and greater advantage.1

This pretended proprietary right attributed to princes is a chimera, produced by an abuse which its supporters would fain make of the laws respecting private inheritances. The state neither is nor can be a patrimony, since the end of patrimony is the advantage of the possessor, whereas the prince is established only for the advantage of the state.2 The consequence is evident: if a nation plainly perceives that the heir of her prince would be a pernicious sovereign, she has a right to exclude him.

The authors, whom we oppose, grant this right to a despotic prince, while they refuse it to nations. This is because they consider such a prince as a real proprietor of the empire, and will not acknowledge that the care of their own safety, and the right to govern themselves, still essentially belong to the society, although they have intrusted them, even without any express reserve, to a monarch and his heirs. In their opinion, the kingdom is the inheritance of the prince, in the same manner as his field and his flocks — a maxim injurious to human nature, and which they would not have dared to advance in an enlightened age, if it had not the support of an authority which too often proves stronger than reason and justice.

§ 62. Of renunciations.

A nation may, for the same reason, oblige one branch who removes to another country, to renounce all claim to the crown, as a daughter who marries a foreign prince.  These renunciations, required or approved by the state, are perfectly valid, since they are equivalent to a law that such persons and their posterity should be excluded from the throne. Thus the laws of England have for ever rejected every Roman Catholic. "Thus a law of Russia, made at the beginning of the reign of Elizabeth, most wisely excludes from the possession of the crown every heir possessed of another monarchy; and thus the law of Portugal disqualifies every foreigner who lays claim to the crown by right of blood."3

Some celebrated authors, in other respects very learned and judicious, have then deviated from the true principles in treating of renunciations. They have largely expatiated on the rights of children born or to be born, of the transmission of those rights, &c. But they ought to have considered the succession less as a property of the reigning family, than as a law of the state. From this clear and incontestable principle, we easily deduce the whole doctrine of renunciations. Those required or approved by the state are valid and sacred:

they are fundamental laws: those not authorized by the state can only be obligatory on the prince who made them. They cannot injure his posterity, and he himself may recede from them in case the state stands in need of him and gives him an invitation: for he owes his services to a people who had committed their safety to his care. For the same reason, the prince cannot lawfully resign at an unseasonable juncture, to the detriment of the state, and abandon in imminent danger a nation that had put itself under his care.4

§ 63. The order of succession ought commonly to be kept.

In ordinary cases, when the state may follow the established rule without being exposed to very great and manifest danger, it is certain that every descendant ought to succeed when the order of succession calls him to the throne, however great may appear his incapacity to rule by himself. This is a consequence of the spirit of the law that established the succession: for the people had recourse to it only to prevent the troubles which would otherwise be almost inevitable at every change. Now little advances would have been made towards obtaining this end, if, at the death of a prince, the people were allowed to examine the capacity of his heir, before they acknowledged him for their sovereign. "What a door would this open for usurpers or malcontents! It was to avoid these inconveniences that the order of succession was established; and nothing more wise could have been done, since by this means no more is required than his being the king's son and his being actually alive, which can admit of no dispute: but, on the other hand, there is no rule fixed to judge of the capacity or incapacity to reign."5 Though the succession was not established for the particular advantage of the sovereign and his family, but for that of the state, the heir-apparent has nevertheless a right, to which justice requires that regard should be paid. His right is subordinate to that of the nation, and to the safety of the state; but it ought to take place when the public welfare does not oppose it. (23)

§ 64. Regents.

These reasons have the greater weight, since the law or the state may remedy the incapacity of the prince by nominating a regent, as is practised in cases of minority. This regent is, during the whole time of his administration, invested with the royal authority; but he exercises it in the king's name. (24)

§ 65. Indivisibility of sovereignties.

The principles we have just established respecting the successive or hereditary right, manifestly show that a prince has no right to divide his state among his children. Every sovereignty, properly so called, is, in its own nature, one and indivisible, since those who have united in society cannot be separated in spite of themselves. Those partitions, so contrary to the nature of sovereignty and the preservation of states, have been much in use; but an end has been put to them, wherever the people, and princes themselves, have had a clear view of their greatest interest, and the foundation of their safety.6

But when a prince has united several different nations under his authority, his empire is then properly an assemblage of several societies subject to the same head; and there exists no natural objection to his dividing them among his children: he may distribute them, if there be neither law nor compact to the contrary, and if each of those nations consents to receive the sovereign he appoints for it. For this reason, France was divisible under the first two races. But being entirely consolidated under the third, it has since been considered as a single kingdom; it has become indivisible, and a fundamental law has declared it so. That law, wisely providing for the preservation and splendour of the kingdom, irrevocably unites to the crown all the acquisitions of its kings.

§ 66. Who are to decide disputes respecting the succession to a sovereignty.

The same principles will also furnish us with the solution of a celebrated question. When the right of succession becomes uncertain in a successive or hereditary state, and two or three competitors lay claim to the crown, it is asked, "Who shall be the judge of their pretensions?" Some learned men, resting on the opinion that sovereigns are subject to no other judge but God, have maintained that the competitors for the crown, while their right remains uncertain, ought cither to come to an amicable compromise, enter into articles among themselves, choose arbitrators, have recourse even to the drawing of lots, or, finally, determine the dispute by arms; and that the subjects cannot in any manner decide the question. One might be astonished that celebrated authors should have maintained such a doctrine. But since, even in speculative philosophy, there is nothing so absurd as not to have been advanced by one or other of the philosophers,7 what can be expected from the human mind, when seduced by interest or fear? What! in a question that concerns none so much as the nation — that relates to a power established only with a view to the happiness of the people — in a quarrel that is to decide for ever their dearest interests, and their very safety — are they to stand by as unconcerned spectators? Are they to allow strangers, or the blind decision of arms, to appoint them a master, as a flock of sheep are to wait till it be determined whether they are to be delivered up to the butcher, or restored to the care of their shepherd?

But, say they, the nation has divested itself of all jurisdiction, by giving itself up to a sovereign; it has submitted to the reigning family; it has given to those who are descended from that family a right which nobody can take from them; it has established them its superiors, and can no longer judge them. Very well! But does it not belong to that same nation to acknowledge the person to whom its duty binds it, and prevent its being delivered up to another? And since it has established the law of succession, who is more capable or has a better right to identify the individual whom the fundamental law had in view, and has pointed out as the successor? We may affirm, then, without hesitation, that the decision of this grand controversy belongs to the nation, and to the nation alone. For even if the competitors have agreed among themselves, or have chosen arbitrators, the nation is not obliged to submit to their regulations, unless it has consented to the transaction or compromise — princes not acknowledged, and whose right is uncertain, not being in any manner able to dispose of its obedience. The nation acknowledges no superior judge in an affair that relates to its most sacred duties and most precious rights. Grotius and Puffendorf differ in reality but little from our opinion; but would not have the decision of the people or state called a juridical sentence (judicium jurisdictionis). Well! be it so: we shall not dispute about words. However, there is something more in the case than a mere examination of the competitors' rights, in order to submit to him who has the best. All the disputes that arise in society are to be judged and decided by the public authority. As soon as the right of succession is found uncertain, the sovereign authority returns for a time to the body of the state, which is to exercise it, cither by itself or by its representatives, till the true sovereign be known. "The contest on this right suspending the functions in the person of the sovereign, the authority naturally returns to the subjects, not for them to retain it, but to prove on which of the competitors it lawfully devolves, and then to commit it to his hands. It would not be difficult to support, by an infinite number of examples, a truth so evident by the light of reason: it is sufficient to remember that the states of France, after the death of Charles the Fair, terminated the famous dispute between Philip de Valois and the king of England (Edward III.), and that those states, though subject to him in whose favour they granted the decision, were nevertheless the judges of the dispute."8

Buicciardini, book xii., also shows that it was the states of Arragon that decided the succession to that kingdom, in favour of Ferdinand, grandfather of Ferdinand the husband of Isabella, queen of Castile, in preference to the other relations of Martin, king of Arragon, who asserted that the kingdom belonged to them.9

In the kingdom of Jerusalem also, it was the states that decided the disputes of those who made pretensions to it; as is proved by several examples in the foreign political history.10

The states of the principality of Neufchatel have often, in the form of a juridical sentence, pronounced on the succession to the sovereignty. In the year 1707, they decided between a great number of competitors, and their decision in favour of the king of Prussia was acknowledged by all Europe in the treaty of Utrecht.

§ 67. That the right to the succession ought not to depend on the judgment of a foreign power.

The better to secure the succession in a certain and invariable order, it is at present an established rule in all Christian states (Portugal excepted), that no descendant of the sovereign can succeed to the crown, unless he be the issue of a marriage that is conformable to the laws of the country. As the nation has established the succession, to the nation alone belongs the power of acknowledging those who are capable of succeeding; and consequently, on its judgment and laws alone must depend the validity of the marriage of its sovereigns and the legitimacy of their birth,

If education had not the power of familiarizing the human mind to the greatest absurdities, is there any man of sense who would not be struck with astonishment to see so many nations suffer the legitimacy and right of their princes to depend on a foreign power? The court of Rome has invented an infinite number of obstructions and cases of invalidity in marriages, and at the same time arrogates to itself the right of judging of their validity, and of removing the obstructions; so that a prince of its communion cannot in certain cases by so much his own master as to contract a marriage necessary to the safety of the state. Jane, the only daughter of Henry IV., king of Castile, found this true by cruel experience. Some rebels published abroad that she owed her birth to Bertrand de la Cueva, the king's favourite; and notwithstanding the declarations and last will of that prince, who explicitly and invariably acknowledged Jane for his daughter, and nominated her his heiress, they called to the crown Isabella, Henry's sister, and wife to Ferdinand, heir of Arragon. The grandees of Jane's party had provided her a powerful resource, by negotiating a marriage between her and Alphonsus, king of Portugal: but as that prince was Jane's uncle, it was necessary to obtain a dispensation from the pope; and Pius II., who was in the interest of Ferdinand and Isabella, refused to grant the dispensation, though such alliances were then very common. These difficulties cooled the ardour of the Portuguese monarch, and abated the zeal of the faithful Castilians. Everything succeeded with Isabella, and the unfortunate Jane took the veil in order to secure, by this heroic sacrifice, the peace of Castile.11

If the prince proceeds and marries, notwithstanding the pope's refusal, he exposes his dominions to the most fatal troubles. What would have become of England, if the Reformation had not been happily established, when the pope presumed to declare Queen Elizabeth illegitimate, and incapable of wearing the crown?

A great emperor, Lewis of Bavaria, boldly asserted the rights of his crown in this respect. In the diplomatic code of the law of nations by Leibnitz, we find12 two acts, in which that prince condemns, as an invasion of the imperial authority, the doctrine that attributes to any other power but his own, the right of granting dispensations, and of judging of the validity of marriages, in the places under his jurisdiction: but he was neither well supported in his lifetime, nor imitated by his successors.

§ 68. Of states called patrimonial.

Finally, there are states whose sovereign may choose his successor, and even transfer the crown to another during his life: these are commonly called patrimonial kingdoms or states: but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shown (§ 61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to receive, if he thinks proper, another sovereign from his hands. Thus we see that Peter I., emperor of Russia nominated his wife to succeed him, though he had children.

§ 69. Every true sovereignty is unalienable.

But when a prince chooses his successor, or when he cedes the crown to another, — properly speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, intrusted — he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. Every true sovereignty is, in its own nature, unalienable. We shall be easily convinced of this, if we pay attention to the origin and end of political society, and of the supreme authority. A nation becomes incorporated into a society, to labour for the common welfare as it shall think proper, and to live according to its own laws. With this view it establishes a public authority. If it intrusts that authority to a prince, even with the power of transferring it to other hands, this can never take place without the express and unanimous consent of the citizens, with the right of really alienating or subjecting the state to another body politic: for the individuals who have formed this society, entered into it in order to live in an independent state, and not under a foreign yoke. Let not any other source of this right be alleged in objection to our argument, as conquest, for instance; for we have already shown (§ 60) that these different sources ultimately revert to the true principles on which all just governments are founded. While the victor does not treat his conquest according to those principles, the state of war still in some measure subsists: but the moment he places it in a civil state, his rights are proportioned by the principles of that state.

I know that many authors, and particularly Grotius,13 give long enumerations of the alienations of sovereignties. But the examples often prove only the abuse of power, not the right. And besides, the people consented to the alienation, either willingly or by force. What could the inhabitants of Pergamus, Bithynia, and Cyrene do, when their kings gave them, by their last wills, to the Roman people? Nothing remained for them, but to submit with a good grace to so powerful a legatee. To furnish an example capable of serving as an authority, they should have produced an instance of a people resisting a similar bequest of their sovereign, and whose resistance had been generally condemned as unjust and rebellious. Had Peter I., who nominated his wife to succeed him, attempted to subject his empire to the grand seignior, or to some other neighbouring power, can we imagine that the Russians would have suffered it, or that their resistance would have passed for a revolt? We do not find in Europe any great state that is reputed alienable. If some petty principalities have been considered as such, it is because they were not true sovereignties. They were fiefs of the empire, enjoying a greater or less degree of liberty: their masters made a traffic of the rights they possessed over those territories: but they could not withdraw them from a dependence on the empire.

Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, the right of really alienating the state can never belong to the sovereign, unless it be expressly given him by the entire body of the people.14 Neither are we to presume that he possesses a right to nominate his successor or surrender the sceptre to other hands, — a right which must be founded on an express consent, on a law of the state, or on long custom, justified by the tacit consent of the people.

§ 70. Duty of a prince who is empowered to nominate his successor.

If the power of nominating his successor is intrusted to the sovereign, he ought to have no other view in his choice but the advantage and safety of the state. He himself was established only for this end (§ 39); the liberty of transferring his power to another could then be granted to him only with the same view. It would be absurd to consider it as a prerogative useful to the prince, and which he may turn to his own private advantage. Peter the Great proposed only the welfare of the empire when he left the crown to his wife. He knew that heroine to be the most capable person to follow his views, and perfect the great things he had begun, and therefore preferred her to his son, who was still too young. If we often found on the throne such elevated minds as Peter's, a nation could not adopt a wiser plan, in order to ensure to itself a good government, than to instruct the prince, by a fundamental law, with the power of appointing his successor. This would be a much more certain method than the order of birth. The Roman emperors, who had no male children, appointed a successor by adoption. To this custom Rome was indebted for a series of sovereigns unequalled in history, — Nerva, Trajan, Adrian, Antoninus, Marcus Aurelius. What princes! Does the right of birth often place such on the throne?

§ 71. He must have at least a tacit ratification.

We may go still farther, and boldly assert, that, as the safety of the whole nation is deeply interested in so important a transaction, the consent and ratification of the people or state is necessary to give it full and entire effect, — at least their tacit consent and ratification. If an emperor of Russia thought proper to nominate for his successor a person notoriously unworthy of the crown, it is not at all probable that vast empire would blindly submit to so pernicious an appointment. And who shall presume to blame a nation for refusing to run headlong to ruin out of respect to the last orders of its prince? As soon as the people submit to the sovereign appointed to rule over them, they tacitly ratify the choice made by the last prince; and the new monarch enters into all the rights of his predecessor.


1. Nimirum, quod publicae salutis causa et communi consensu statatum est, eadem multitudinis voluntate, repus exigentibus, immutari quid obstat? MARIANA, ibid, c. iv.

2. When Philip II. resigned the Netherlands to his daughter Isabella Clara Eugenia, it was said (according to the testimony of Grotius) that it was setting a dangerous precedent, for a prince to treat free citizens as his property, and barter them away like domestic slaves; that, among barbarians, indeed, the extraordinary practice sometimes obtained of transferring governments by will or donation, because those people were incapable of discerning the difference between a prince and a master; but that those, whom superior knowledge enabled to distinguish between what is lawful and what is not, could plainly perceive that the administration of a state is the property of the people (thence usually denominated res-publica); and that, as in every period of the world there have been nations who governed themselves by popular assemblies, or by a senate; there have been others who intrusted the general management of their concerns to princes, For it is not to be imagined, it was added, that legitimate sovereignties have originated from any other source than the consent of the people, who gave themselves all up to a single person, or, for the sake of avoiding the tumults and discord of elections, to a whole family; and those to whom they thus committed themselves were induced, by the prospect of honourable pre-eminence alone, to accept a dignity by which they were bound to promote the general welfare of their fellow-citizens in preference to their own private advantage. GROTIUS. Hist. of the Disturbances in the Netherlands, book ii. — Edit. A.D. 1797.

3. Spirit of Laws, book xxvi. chap. xxiii., where may be seen very good political reasons for these regulations.

4. See further on.

5. Memorial in behalf of Madame de Longueville, concerning the principality of Neufchatel, in 1672.

(23) See this doctrine illustrated in 1 Bla. Com. 247-8. — C

(24) Ante, p. 26, n. — C.

6. But it is to be observed that those partitions were not made without the approbation and consent of the respective states.

7. Nesico quomodo nihil tam absurde did potest, quod non dicatur ab aliquo philosophorum. Cicero, de Divinat lib. ii.

8. Answer in behalf of Madame de Longueville to a memorial in behalf of Madame de Nemours.

9. Ibid.

10. See the same memorial, which quotes P. Labbe's Royal Abridgment, page 501, &c.

11. I take this historical passage from M. Du Port de Tertre's Conspiracies. To him I refer; for I have not the original historians by me. However, I do not enter into the question relating to the birth of Jane: this would here be of no use, The princess had not been declared a bastard according to the laws; the king acknowledged her for his daughter; and besides, whether she was or was not legitimate, the inconveniences resulting from the pope's refusal still remained the same with respect to her and the king of Portugal. — Note. edit. 1797.

12. P. 154. Forma divortii matrimonialis inter Johannem filium regis Bohemiae et Margaretham ducissam Karinthiae. This divorce is given by the emperor on account of the impotency of the husband, per auctoritatem, says he, nobis rite debitam et concessam.

P. 156. Forma dispensationis super affinitate consanguinitatis inter Ludovicum marchionem Brandenburg et Margaretham ducissam Karinthiae, nec non legitimatio liberorum procreandorum, faciae per dom. Ludovic IV. Rom. imper.

It is only human law, says the emperor, that hinders these marriages intra gradus affinitatis sanguinis, praesertim intra fratres et sorores. De cujus legis praeceptis dispensare solummodo pertinet ad auctoritatem imperatoris seu principis Romanorum. He then opposes and condemns the opinion of those who dare to say that these dispensations: depend on ecclesiastics. Both this act and the former are dated in the year 1341. — Note, edit A.D. 1797.

13. Grotius De Jure Belli et Pacis lib. i. cap. iii § 12.

14. The pope, opposing the attempt made upon England by Louis, the son of Philip Augustus, and alleging, as his pretext. that John had rendered himself a vassal of the holy see, received for answer, among other arguments, "that a sovereign had no right to dispose of his states without the consent of his barons, who were bound to defend them." On which occasion the French nobles unanimously exclaimed, that they would, to their last breath, maintain this truth, "that no prince can, of his own private will, give away his kingdom, or render it tributary, and thus enslave the nobility." Velly's Hist. of France, vol. iii. p. 491.


The LAW OF NATIONS - BOOK I.

CHAP. VI.

PRINCIPAL OBJECTS OF A GOOD GOVERNMENT; AND
FIRST TO PROVIDE FOR THE NECESSITIES OF THE NATION.

§ 72. The object of society points out the duties of the sovereign.

AFTER these observations on the constitution of the state, let us now proceed to the principal objects of a good government. We have seen above (§§ 41 and 42) that the prince, on his being invested with the sovereign authority, is charged with the duties of the nation in relation to government. In treating of the principal objects of a wise administration, we at once show the duties of a nation towards itself, and those of the sovereign towards his people.

A wise conductor of the state will find in the objects of civil society the general rule and indication of his duties. The society is established with the view of procuring, to those who are its members, the necessaries, conveniences, and even pleasures of life, and, in general, every thing necessary to their happiness, — of enabling each individual peaceably to enjoy his own property, and to obtain justice with safety and certainty, — and, finally, of defending themselves in a body against all external violence (§ 15). The nation, or its conductor, should first apply to the business of providing for all the wants of the people, and producing a happy plenty of all the necessaries of life, with its conveniences and innocent and laudable enjoyments. (25) As an easy life without luxury contributes to the happiness of men, it likewise enables them to labour with greater safety and success after their own perfection, which is their grand and principal duty, and one of the ends they ought to have in view when they unite in society,

§ 73. To take care that there be a sufficient number of workmen.

To succeed in procuring this abundance of every thing, it is necessary to take care that there be a sufficient number of able workmen in every useful or necessary profession. (26) An attentive application on the part of government, wise regulations, and assistance properly granted, will produce this effect without using constraint, which is always fatal to industry.

§ 74. To prevent the emigration of those that are useful.

Those workmen that are useful ought to be retained in the state; to succeed in retaining them, the public authority has certainly a right to use constraint, if necessary. (27) Every citizen owes his personal services to his country; and a mechanic, in particular, who has been reared, educated, and instructed in its bosom, cannot lawfully leave it, and carry to a foreign land that industry which he acquired at home, unless his country has no occasion for him, (27) or he cannot there obtain the just fruit of his labour and abilities. Employment must then be procured for him; and, if, while able to obtain a decent livelihood in his own country, he would without reason abandon it, the state has a right to detain him. (28) But a very moderate use ought to be made of this right, and only in important or necessary cases. Liberty is the soul of abilities and industry: frequently a mechanic or an artist, after having long travelled abroad, is attracted home to his native soil by a natural affection, and returns more expert and better qualified to render his country useful services. If certain extraordinary cases be excepted, it is best in this affair to practise the mild methods of protection, encouragement, &c., and to leave the rest to that natural love felt by all men for the places of their birth.

§ 75. Emissaries who entice them away.

As to those emissaries who come into a country to entice away useful subjects, the sovereign has a right to punish them severely, and has just cause of complaint against the power by whom they are employed.

In another place, we shall treat more particularly of the general question, whether a citizen be permited to quit the society of which he is a member. The particular reasons concerning useful workmen are sufficient here.

§ 76. Labour and industry must be encouraged.

The state ought to encourage labour, to animate industry, (29) to excite abilities, to propose honours, rewards, privileges, and so to order matters that every one may live by his industry. In this particular, England deserves to be held up as an example. The parliament incessantly attends to these important affairs, in which neither care nor expense is spared. (30) And do we not even see a society of excellent citizens formed with this view, and devoting considerable sums to this use? Premiums are also distributed in Ireland to the mechanics who most distinguish themselves in their profession. Can such a state fail of being powerful and happy?


(25) See the general doctrine, that the happiness of a people depends on the quantity of productive labour and employment, and the consequent return of produce and remuneration, discussed at large. 2 Malthus, 433; 2 Smith, W.N. 200; 2 Paley, Mor. Phil. 345; Sir J. Child on Trade, 1667-8; and Tucker on Trade, part ii. sections, 4, 7, 8; 1 Chitty's Commercial Law, 1, &c. — C.

(26) There were in England many enactments enforcing this supposed policy, and prohibiting various workmen from leaving the kingdom. See 5 Geo. I. c. 27; 23 Geo. II. c. 13:14 Geo. III c. 71; 4 Bla. Com. 160. But, according to more modern policy, these enactments were repealed by 5 Geo. lV. c. 97. — C.

(27) See the English acts enforcing this rule, 5 Geo. I. C. 27; 23 Geo. II. c. 13; 14 Geo. III. c. 71; 4 Bla. Com. 160; but repealed by 5 Geo. IV. c. 97. — C.

(28) See also the power of preventing a subject, or even a foreigner, going abroad. Plack v. Holm, 1 Jac. & Walk. Rep. 405, and post, § 272. and Book II. § 108. — C.

(29) Ante, § 72, note (25), — C.

(30) How far the interference of the legislature is advisable, and when — see the authorities and arguments collected, 1 Chitty's Commercial Law, 4 to 7, and post, § 98. — C.


The LAW OF NATIONS - BOOK I.

CHAP VII.

OF THE CULTIVATION OF THE SOIL.

§ 77. The utility of tillage.

OF all the arts, tillage, or agriculture, is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase; it forms the surest resource and the most solid fund of riches and commerce, for a nation that enjoys a happy climate. (31)

§ 78. Regulations necessary in this respect

This object then deserves the utmost attention of the government. The sovereign ought to neglect no means of rendering the land under his jurisdiction as well cultivated as possible. He ought not to allow either communities or private persons to acquire large tracts of land and leave them uncultivated. Those rights of common, which deprive the proprietor of the free liberty of disposing of his land — which will not allow him to enclose and cultivate it in the most advantageous manner; those rights, I say, are inimical to the welfare of the state and ought to be suppressed, or reduced to just bounds. Notwithstanding the introduction of private property among the citizens, the nation has still a right to take the most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible. (32)

§ 79. For the protection of husbandmen.

The government ought carefully to avoid every thing capable of discouraging the husbandman, or of diverting him from the labours of agriculture. Those taxes — those excessive and ill-proportioned impositions, the burden of which falls almost entirely on the cultivators — and the oppressions they suffer from the officers who levy them — deprive the unhappy peasant of the means of cultivating the earth, and depopulate the country. Spain is the most fertile and the worst cultivated country in Europe. The church there possesses too much land; and the contractors for the royal magazines, being authorized to purchase, at a low price, all the corn they find in the possession of a peasant, above what is necessary for the subsistence of himself and his family, so greatly discourage the husbandman, that he sows no more corn than is barely necessary for the support of his own household. Hence the frequent scarcity in a country capable of feeding its neighbours.

§ 80. Husbandry ought to be placed in an honorable light

Another abuse injurious to agriculture is the contempt cast upon the husbandman. The tradesmen in cities — even the most servile mechanics — the idle citizens — consider him that cultivates the earth with a disdainful eye; they humble and discourage him; they dare to despise a profession that feeds the human race — the natural employment of man. A liltle insignificant haberdasher, a tailor, places far beneath him the beloved employment of the first consuls and dictators of Rome! China has wisely prevented this abuse: agriculture is there held in honour; and to preserve this happy mode of thinking, the emperor himself, followed by his whole court, annually, on a solemn day, sets his hand to the plough, and sows a small piece of land. Hence China is the best cultivated country in the world; it feeds an immense multitude of inhabitants who at first sight appear to the traveller too numerous for the space they occupy.

§ 81. The cultivation of the soil a natural obligation

The cultivation of the soil deserves the attention of the government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind. The whole earth is destined to feed its inhabitants; but this it would be incapable of doing if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share; and it has no right to enlarge its boundaries, or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries. Those nations (such as the ancient Germans, and some modern Tartars) who inhabit fertile countries, but disdain to cultivate their lands and choose rather to live by plunder, are wanting to themselves, are injurious to all their neighbours, and deserve to be extirpated as savage and pernicious beasts. There are others, who, to avoid labour, choose to live only by hunting, and their flocks. This might, doubtless, be allowed in the first ages of the world, when the earth, without cultivation, produced more than was sufficient to feed its small number of inhabitants. But at present, when the human race is so greatly multiplied, it could not subsist if all nations were disposed to live in that manner. Those who still pursue this idle mode of life, usurp more extensive territories than, with a reasonable share of labour, they would have occasion for, and have, therefore, no reason to complain, if other nations, more industrious and too closely confined, come to take possession of a part of those lands. Thus, though the conquest of the civilized empires of Peru and Mexico was a notorious usurpation, the establishment of many colonies on the continent of North America might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them.

§ 82. Of public granaries.

The establishment of public granaries is an excellent regulation for preventing scarcity. But great care should be taken to prevent their being managed with a mercantile spirit, and with views of profit. This would be establishing a monopoly, which would not be the less unlawful for its being carried on by the magistrate. These granaries should be filled in times of the greatest plenty, and take off the corn that would lie on the husbandman's hands, or be carried in too great quantities to foreign countries: they should be opened when corn is dear, and keep it at a reasonable price. If in a time of plenty they prevent that necessary commodity from easily falling to a very low price, this inconvenience is more than compensated by the relief they afford in times of dearth: or rather, it is no inconvenience at all; for, when corn is sold extremely cheap, the manufacturer, in order to obtain a preference, is tempted to undersell his neighbours, by offering his goods at a price which he is afterwards obliged to raise (and this produces great disorders in commerce, by putting it out of its course); or he accustoms himself to an easy life, which he cannot support in harder times. It would be of advantage to manufactures and to commerce to have the subsistence of workmen regularly kept at a moderate and nearly equal price. In short, public granaries keep in the state quantities of corn that would be sent abroad at too cheap a rate, and must be purchased again, and brought back at a very great expense after a bad harvest, which is a real loss to the nation. These establishments, however, do not hinder the corn trade. If the country, one year with another, produces more than is sufficient for the support of her inhabitants, the superfluity will still be sent abroad: but it will be sent at a higher and fairer price.


(31) As to the subject of this chapter, see further authorities, Chitty's Commercial Law, vol. i. chap. 1. — C.

(32) In England there are few legislative enactments respecting the cultivation of the soil or employment of its produce, each individual being left to his own discretion; but to prevent the injurious sale of farming produce, thereby impoverishing the land, there is an express enactment enforcing public policy in that respect. See 56 Geo. III. c. 50, and its recitals. In France there are express provisions punishing individuals who suffer injurious weeds to seed on land to the injury of their neighbors, a regulation which would be exceedingly salutary if introduced into this country. — C.


The LAW OF NATIONS - BOOK I.

CHAP. VIII.

OF COMMERCE (33)

§ 83. Of home and foreign trade.

IT is commerce that enables individuals and whole nations to procure those commodities which they stand in need of, but cannot find at home. Commerce is divided into home and foreign trade. (34) The former is that carried on in the state between the several inhabitants; the latter is carried on with foreign nations.

§ 84. Utility of the home trade.

The home trade of a nation is of great use; it furnishes all the citizens with the means of procuring whatever they want, as either necessary, useful, or agreeable; it causes a circulation of money, excites industry, animates labour, and, by affording subsistence to a great number of people, contributes to increase the population and power of the state.

§ 85. Utility of foreign trade.

The same reasons show the use of foreign trade, which is moreover attended with these two advantages: — 1. By trading with foreigners, a nation procures such things as neither nature nor art can furnish in the country it occupies. And secondly, if its foreign trade be properly directed, it increases the riches of the nation, and may become the source of wealth and plenty. Of this the example of the Carthaginians among the ancients, and that of the English and Dutch among the moderns, afford remarkable proofs. Carthage, by her riches, counterbalanced the fortune, courage, and greatness of Rome. Holland has amassed immense sums in her marshes; a company of her merchants possesses whole kingdoms in the East, and the governor of Batavia exercises command over the monarchs of India. To what a degree of power and glory has England arrived! Formerly her warlike princes and inhabitants made glorious conquests, which they afterwards lost by those reverses of fortune so frequent in war; at present, it is chiefly commerce that places in her hand the balance of Europe.

§ 86. Obligation to cultivate the home trade.

Nations are obliged to cultivate the home trade, — first, because it is clearly demonstrated from the law of nature, that mankind ought mutually to assist each other, and, as far as in their power, contribute to the perfection and happiness of their fellow-creatures: whence arises, after the introduction of private property, the obligation to resign to others, at a fair price, those things which they have occasion for, and which we do not destine for our own use. Secondly, society being established with a view that each may procure whatever things are necessary to his own perfection and happiness — and a home trade being the means of obtaining them — the obligations to carry on and improve this trade are derived from the very compact on which the society was formed. Finally, being advantageous to the nation, it is a duty the people owe to themselves, to make this commerce flourish.

§ 87. Obligation to carry on foreign trade.

For the same reason, drawn from the welfare of the state, and also to procure for the citizens every thing they want, a nation is obliged to promote and carry on a foreign trade. Of all the modern states, England is most distinguished in this respect. The parliament have their eyes constantly fixed on this important object; they effectually protect the navigation of the merchants, and, by considerable bounties, favour the exportation of superfluous commodities and merchandises. In a very sensible product,1 may be seen the valuable advantages that kingdom has derived from such judicious regulations.

§ 88. Foundation of the laws of commerce: — right of purchasing.

Let us now see what are the laws of nature and the rights of nations in respect to the commerce they carry on with each other. Men are obliged mutually to assist each other as much as possible, and to contribute to the perfection and happiness of their fellow-creatures (Prelim. § 10); (35) whence it follows, as we have said above (§ 86), that, after the introduction of private property, it became a duty to sell to each other, at a fair price, what the possessor himself has no occasion for, and what is necessary to others; because, since that introduction of private property, no one can, by any other moans, procure the different things that may be necessary or useful to him, and calculated to render life pleasant and agreeable. Now, since right springs from obligation (Prelim. § 3), the obligation which we have just established gives every man the right of procuring the things he wants, by purchasing them at a reasonable price from those who have themselves no occasion for them. (36)

We have also seen (Prelim. § 5) that men could not free themselves from the authority of the laws of nature by uniting in civil society, and that the whole nation remains equally subject to those laws in its national capacity; so that the natural and necessary law of nations is no other than the law of nature properly applied to nations or sovereign states (Prelim. § 6): from all which it follows, that a nation has a right to procure, at an equitable price, whatever articles it wants, by purchasing them of other nations who have no occasion for them. This is the foundation of the right of commerce between different nations, and, in particular, of the right of buying. (36)

§ 89. Right of selling

We cannot apply the same reasoning to the right of selling such things as we want to part with. Every man and every nation being perfectly at liberty to buy a thing that is to be sold, or not to buy it, and to buy it of one rather than of another' the law of nature gives to no person whatsoever any kind of right to sell what belongs to him to another who does not wish to buy it; neither has any nation the right of selling her commodities or merchandise to a people who are unwilling to have them.

§ 90. Prohibition of foreign merchandise.

Every state has consequently a right to prohibit the entrance of foreign merchandises; and the nations that are affected by such prohibition have no right to complain of it, as if they had been refused an office of humanity. (37) Their complaints would be ridiculous, since their only ground of complaint would be, that a profit is refused to them by that nation who does not choose they should make it at her expense, It is, however, true, that if a nation was very certain that the prohibition of her merchandises was not founded on any reason drawn from the welfare of the state that prohibited them, site would have cause to consider this conduct as a mark of ill-will shown in this instance, and to complain of it on that fooling. But it would be very difficult for the excluded nation to judge with certainty that the state had no solid or apparent reason for making such a prohibition.

§ 91. Nature of the right of buying,

By the manner in which we have shown a nation's right to buy of another what it wants, it is easy to see that this right is not one of those called perfect, and that are accompanied with a right to use constraint. Let us now distinctly explain the nature of a right which may give room for disputes of a very serious nature. You have a right to buy of others such things as you want, and of which they themselves have no need; you make application to me: I am not obliged to sell them to you, if I myself have any occasion for them. In virtue of the natural liberty which belongs to all men, it is I who am to judge whether I have occasion for them myself, or can conveniently sell them to you; and you have no right to determine whether I judge well, or ill, because you have no authority over me. If I, improperly, and without any good reason, refuse to sell you at a fair price what you want, I offend against my duty: you may complain of this, but you must submit to it: and you cannot attempt to force me, without violating my natural right, and doing me an injury. The right of buy ing the things we want is then only an imperfect right, like that of a poor man to receive alms of the rich man; if the latter refuses to bestow it, the poor man may justly complain: but he has no right to take it by force.

If it be asked, what a nation has a right to do in case of extreme necessity, — this question will be answered in its proper place in the following book, Chap. IX.

§ 92. Every nation is to choose how far it will engage in commerce.

Since then a nation cannot have a natural right to sell her merchandises to another that is unwilling to purchase them, since she has only an imperfect right to buy what she wants of others, since it belongs only to these last to judge whether it be proper for them to sell or not; and finally, since commerce consists in mutually buying and selling all sorts of commodities, it is evident that it depends on the will of any nation to carry on commerce with another, or to let it alone. If she be willing to allow this to one, it depends on the nation to permit it under such conditions as she shall think proper. For in permitting another nation to trade with her, she grants that other a right; and every one is at liberty to affix what conditions he pleases to a right which he grants of his own accord. (38)

§ 93. How a nation acquires a perfect right to a foreign trade.

Men and sovereign states may, by their promises, enter into a perfect obligation with respect to each other, in things where nature has imposed only an imperfect obligation. A nation, not having naturally a perfect right to carry on a commerce with another, may procure it by an agreement or treaty. This right is then acquired only by treaties, and relates to that branch of the law of nations termed conventional (Prelim. § 24). The treaty that gives the right of commerce, is the measure and rule of that right.

§ 94. Of the simple permission of commerce.

A simple permission to carry on commerce with a nation gives no perfect right to that commerce. For if I merely and simply permit you to do any thing, I do not give you any right to do it afterwards in spite of me: — you may make use of my condescension as long as it lasts; but nothing prevents me from changing my will. As then every nation has a right to choose whether she will or will not trade with another, and on what conditions she is willing to do it (§ 92), if one nation has for a time permitted another to come and trade in the country, she is at liberty, whenever she thinks proper, to prohibit that commerce — to restrain it — to subject it to certain regulations; and the people who before carried it on cannot complain of injustice.

Let us only observe, that nations, as well as individuals, are obliged to trade together for the common benefit of the human race, because mankind stand in need of each other's assistance (Prelim. §§ 10, 11, and Book I. § 88): still, however, each nation remains at liberty to consider, in particular cases, whether it be convenient for her to encourage or permit commerce; and as our duty to ourselves is paramount to our duty to others, if one nation finds herself in such circumstances that she thinks foreign commerce dangerous to the state, she may renounce and prohibit it. This the Chinese have done for a long time together. But, again, it is only for very serious and important reasons that her duty to herself should dictate such a reserve; otherwise, she could not refuse to comply with the general duties of humanity.

§ 95. Whether the laws relating to commerce are subject to prescription. (39)

We have seen what are the rights that nations derive from nature with regard to commerce, and how they may acquire others by treaties: let us now examine whether they can found any on long custom. To determine this question in a solid manner, it is necessary first to observe, that there are rights which consist in a simple power: they are called in Latin, jura meræ facultatis, rights of mere ability. They are such in their own nature that he who possesses them may use them or not, as he thinks proper — being absolutely free from all restraint in this respect; so that the actions that relate to the exercise of these rights are acts of mere free will, that may be done or not done, according to pleasure. It is manifest that rights of this kind cannot be lost by prescription, on account of their not being used, since prescription is only founded on consent legitimately presumed; and that, if I possess a right which is of such a nature that I may or may not use it, as I think proper, without any person having a right to prescribe to me on the subject, it cannot be presumed, from my having long forborne to use it, that I therefore intend to abandon it. This right is then imprescriptible, unless I have been forbidden or hindered from making use of it, and have obeyed with sufficient marks of consent. Let us suppose, for instance, that I am entirely at liberty to grind my corn at any mill I please, and that during a very considerable time, a century if you please, I have made use of the same mill: as I have done in this respect what I thought proper, it is not to be presumed, from this long-continued use of the same mill, that I meant to deprive myself of the right of grinding at any other; and, consequently, my right cannot be lost by prescription. But now suppose, that, on my resolving to make use of another mill, the owner of the former opposes it, and announces to me a prohibition; if I obey his prohibition without necessity, and without opposition, though I have it in my power to defend myself, and know my right, this right is lost, because my conduct affords grounds for a legitimate presumption that I chose to abandon it. — Let us apply these principles. — Since it depends on the will of each nation to carry on commerce with another, or not to carry it on, and to regulate the manner in which it chooses to carry it on (§ 92), the right of commerce is evidently a right of mere ability (jus merae facultatis), a simple power, and consequently is imprescriptible. Thus, although two nations have treated together, without interruption, during a century, this long usage does not give any right to either of them; nor is the one obliged on this account to suffer the other to come and sell its merchandises, or to buy others: — they both preserve the double right of prohibiting the entrance of foreign merchandise, and of selling their own wherever people are willing to buy them. Although the English have from time immemorial been accustomed to get wine from Portugal, they are not on that account obliged to continue the trade, and have not lost the liberty of purchasing their wines elsewhere. (40) Although they have, in the same manner, been long accustomed to sell their cloth in that kingdom, they have, nevertheless, a right to transfer that trade to any other country: and the Portuguese, on their part, are not obliged by this long custom, either to sell their wines to the English, or to purchase their cloths. If a nation desires any right of commerce which shall no longer depend on the will of another, she must acquire it by treaty. (40)

§ 96. Imprescriptibility of rights founded on treaty.

What has been just said may be applied to the rights of commerce acquired by treaties. If a nation has by this method procured the liberty of selling certain merchandises to another, she does not lose her right, though a great number of years are suffered to elapse without its being used; because this right is a simple power, jus merae facultatis, which she is at liberty to use or not, whenever she pleases.

Certain circumstances, however, may render a different decision necessary, because they imply a change in the nature of the right in question. For instance, if it appears evident, that the nation granting this right granted it only with a view of procuring a species of merchandise of which she stands in need, and if the nation which obtained the right of selling neglects to furnish those merchandises, and another offers to bring them regularly, on condition of having an exclusive privilege, — it appears certain that the privilege may be granted to the latter. Thus the nation that had the right of selling would lose it, because she had not fulfilled the tacit condition.

§ 97. Of monopolies, and trading companies, with exclusive privileges. (41)

Commerce is a common benefit to a nation; and all her members have an equal right to it. Monopoly, therefore, in general, is contrary to the rights of the citizens. However, this rule has its exceptions, suggested even by the interest of the nation: and a wise government may, in certain cases, justly establish monopolies. There are commercial enterprises that cannot be carried on without an energy that requires considerable funds, which surpass the ability of individuals. There are others that would soon become ruinous, were they not conducted with great prudence, with one regular spirit, and according to well-supported maxims and rules. These branches of trade cannot be indiscriminately carried on by individuals: companies are therefore formed, under the authority of government; and these companies cannot subsist without an exclusive privilege. It is therefore advantageous to the nation to grant them: hence have arisen, in different countries, those powerful companies that carry on commerce with the East. When the subjects of the United Provinces established themselves in the Indies on the ruin of their enemies the Portuguese, individual merchants would not have dared to think of such an arduous enterprise; and the state itself, wholly taken up with the defence of its liberty against the Spaniards, had not the means of attempting it.

It is also certain beyond all doubt, that, whenever any individual offers, on condition of obtaining an exclusive privilege, to establish a particular branch of commerce or manufacture which the nation has not the means of carrying on, the sovereign may grant him such privilege.

But whenever any branch of commerce may be left open to the whole nation, without producing any inconvenience or being less advantageous to the state, a restriction of that commerce to a few privileged individuals is a violation of the rights of all the other citizens. And even when such a commerce requires considerable expenses to maintain forts, men of war, &c., this being a national affair, the state may defray those expenses, and, as an encouragement to industry, leave the profits of the trade to the merchants. This is sometimes done in England.

§ 98. Balance of trade, and attention of government in this respect.

The conductor of a nation ought to take particular care to encourage the commerce that is advantageous to his people, and to suppress or lay restraints upon that which is to their disadvantage. (42) Gold and silver having become the common standard of the value of all the articles of commerce, the trade that brings into the state a greater quantity of these metals than it carries out, is an advantageous trade; and, on the contrary, that is a ruinous one, which causes more gold and silver to be sent abroad, than it brings home. This is what is called the balance of trade. The ability of those who have the direction of it, consists in making that balance turn in favour of the nation.

§ 99. Import duties. (43)

Of all the measures that a wise government may take with this view, we shall only touch here on import duties. When the conductors of a state, without absolutely forcing trade, are nevertheless desirous of diverting it into other channels, they lay such duties on the merchandises they would discourage as will prevent their consumption. Thus, French wines are charged with very high duties in England, while the duties on Portugal are very moderate, — because England sells few of her productions to France, while she sells large quantities to Portugal. There is nothing in this conduct that is not very wise and extremely just; and France has no reason to complain of it — every nation having an undoubted right to make what conditions she thinks proper, with respect to receiving foreign merchandises, and being even at liberty to refuse taking them at all.


(33) See the authorities and doctrines on the advantage of commerce and commercial regulations, 1 Chitty's Commercial Law, 1 to 106. — C.

(34) To these are to be added the carrying trade, formerly one of the principal sources of British wealth and power. See authorities, 1 Chitty's Commercial Law, 7, 8, &c. — C.

1. Remarks on the Advantages and Disadvantages of France and Great Britain with respect to Commerce.

(35) See also s. 13, and Id. note. ante. — C.

(36) The moral obligation of a nation, in time of peace, to permit commercial intercourse with other states, and to allow other states to buy her surplus produce, or to sell or exchange their own surplus produce, is illustrated in Mr. Pitt's celebrated speech in concluding the commercial treaty with France in 1786, &c., 2 Smith's W. of N, 226 to 252; Tucker's Pamphlet Cui Bono, and 1 Chitty's Commercial Law, 73 to 79.1 his seems to be considered by the ablest writers on the law of nations, to be a moral duty but of imperfect obligation, so that in truth each state has a right, when so disposed, to decline any commercial intercourse with other states. Id ibid et supra. — C.

(37) When such a prohibition has been established, any violation of it in general subjects the ship and goods to seizure and confiscation, as in case of smuggling, whether by exporting or importing prohibited goods, or permitted goods without paying imposed duties, Bird v. Appleton, 8 Term Rep. 562; Wigmore v. Reed, 5 Term Rep. 599: Holman v. Johnson, Cowp. 344. — C.
(Church v. Hubbart, 2 Cranch. 187.)

(38) With respect to commercial intercourse with the colonies of a parent state of Europe, all the European nations which have formed settlements abroad have so appropriated the trade of those settlements to themselves, either in exclusively permitting their own subjects to partake of it, or in granting a monopoly to trading companies, that the colonies themselves cannot legally carry on hardly any direct trade with other powers: consequently the commerce in those possessions is not free to foreign nations; and they are not even permitted to land in the country, or to enter with their vessels within cannon shot of the shore, except only in cases of urgent necessity. This has now become generally the understanding and law of nations as regards colonies; and the ships, &c. violating the rule are liable to seizure. Marten's Law of Nations, 150 to 152; Bird v. Appleton, 8 Term Rep. 562; 1 Chitty's Commercial Law, 79, 211 to 244, 470, 631. — C.

(39) See further, Grotius, 158; Puffendorf, B. 4. chap. 5, s. 10, p. 168; 1 Chit. Com. Law, 80, 81. — C.

(40) The perpetual obligation to purchase Port wines from Portugal in exchange for British woollen cloths was established by the celebrated treaty of Methuen, A.D. 1703 (so called because concluded by Sir P. Methuen): with Portugal: a treaty which has been censured by some as evidently advantageous to Portugal and disadvantagous to Great Britain. 2 Smith, W.N. 338 to 341; Tucker on Trade, 356; and 1 Chitty's Commercial Law. 619. — C.

(41) See the advantages and disadvantages resulting from commercial companies and foreign monopolies, and upon colonization in general. 1 Chitty's Commercial Law, 631 to 689; and see some sensible observations on the impolicy of Exclusive Companies, Evans on Statutes, Class III. title Insurance, p. 231. Dr. Adam Smith, in his Wealth of Nations, book iv. c. 7, p. 379, &c. and Dean Tucker, in his Essay on Trade, 67 to 71 (but see Id. 40, 41), admit, that, to induce speculating and enterprising individuals to embark their capitals in expensive undertakings, probably generally beneficial in the result, but which could not be pursued by single individuals, it may be expedient originally to afford them a monopoly; hut that, after they have acquired a liberal profit, the trade ought to be thrown open. Again, when a country becomes too densely populated, and many subjects are out of employ and restless, then there may be another reason for encouraging the creation of foreign companies. A celebrated diplomatist, and an acute observer of human nature (M. Talleyrand), has justly said, that the art of putting men into their proper places is, perhaps, the first science of government, but that of finding the proper place for the discontented is assuredly the most difficult: and the presenting to their imagination in a distant country, perspective views, on which their thoughts and desires may fix themselves, is one of the solutions of this difficulty. In the development of the motives which determined the establishment of the ancient colonies we easily remark, that, at the very time they were indispensable, they were voluntary; that they were presented by the governments as an allurement, not as a punishment. Bodies politic ought to reserve to themselves the means of placing to advantage, at a distance from their immediate seat, that superabundance of citizens who from time to time threaten their tranquillity. Thus, with new views of life, and the content springing from the full employment of the aspiring mind of man, and under the influence of renewed hope, the bad, the idle, and the turbulent may be rendered useful members of society. Our colonies, then, present such a field for the promotion of human happiness, such a scope for the noblest purposes of philanthropy, that we cannot be led to think their interests will be overlooked by a wise legislature or government. — C.

(42) This is a questionable policy. It has been laid down by some of the most eminent writers on political economy, that every active interference or the legislature with its subjects, by prohibiting or restraining any particular branch of honest labour, or by encouraging any particular branch at the expense of the others, whether in agriculture or commerce, has uniformly retarded the advances of public opulence, and that the sound policy of a legislator is not to impose restrictions or regulations upon domestic industry, but rather to prevent them from being imposed by the contrivance or folly of others. See 2 Smith, W.M. 118, 125, 201, 204; 3 Id. 183; Malthus. 196; 2 Paley, Mor. Phil. 400, 402; 3 Hume, Hist. 403; Sir J. Child on Trade, 2d part, 46, 81, 86, 132, 154 to 164: and Buchanan's Observations on Smith's W. of N. 2d ed. vol. 4, page 156, 157; Introduc. 3 Lord Sheffield's Strictures on Navigation System, 3 Adolph. 163, and see ante, chap. 6, and 1 Chitty's Commercial Law, 4 to 7.

But as regards the encouragement or discouragement of any particular branch of trade, there is another motive for interference which powerfully influences, viz, the increase of revenue, for whenever the luxury or other wish of the people introduces a foreign, or even a domestic article to greater consumption, a moderate charge upon the same, though in a degree restrictive upon the consumption, will in general be a proper tax. Ibid. — C.


The LAW OF NATIONS - BOOK I.

CHAP. IX.

OF THE CARE OF THE PUBLIC WAYS OF COMMUNICATION,
AND THE RIGHT OF TOLL.

§ 100. Utility of highways, canals, &c.

THE utility of highways, bridges, canals, and, in a word, of all safe and commodious ways of communication, cannot be doubted. They facilitate the trade between one place and another, and render the conveyance of merchandise less expensive, as well as more certain and easy. The merchants are enabled to sell at a better price, and to obtain the preference; an attraction is held out to foreigners, whose merchandises are carried through the country, and diffuse wealth in all the places through which they pass. France and Holland feel the happy consequences of this from daily experience. (44)

§ 101. Duty of government in this respect.

One of the principal things that ought to employ the attention of the government with respect to the welfare of the public in general, and of trade in particular, must then relate to the highways, canals, &c., in which nothing ought to be neglected to render them safe and commodious. France is one of those states where this duty to the public is discharged with the greatest attention and magnificence. Numerous patroles everywhere watch over the safety of travellers: magnificent roads, bridges, and canals, facilitate the communication between one province and another: — Lewis XIV. joined the two seas by a work worthy of the Romans.

§ 102. Its rights in this respect.

The whole nation ought, doubtless, to contribute to such useful undertakings. When therefore the laying out and repairing of highways, bridges, and canals, would be too great a burden on the ordinary revenues of the state, the government may oblige the people to labour at them, or to contribute to the expense. (45) The peasants, in some of the provinces of France, have been heard to murmur at the labours imposed upon them for the construction of roads: but experience had no sooner made them sensible of their true interest, than they blessed the authors of the undertaking.

§ 103. Foundation of the right of toll (46)

The construction and preservation of all these works being attended with great expense, the nation may very justly oblige all those to contribute to them, who receive advantage from their use: this is the legitimate origin of the right of toll. It is just that a traveller, and especially a merchant, who receives advantage from a bridge, a canal, or a road, in his own passage, and in the more commodious conveyance of his merchandise, should help to defray the expense of these useful establishments, by a moderate contribution: and if the state thinks proper to exempt the citizens from paying it, she is under no obligation to gratify strangers in this particular.

§ 104. Abuse of this right.

But a law so just in its origin frequently degenerates into great abuses. There are countries where no care is taken of the highways, and where nevertheless considerable tolls are exacted. A lord of a manor, who happens to possess a strip of land terminating on a river, there establishes a toll, though he is not at a farthing's expense in keeping up the navigation of the river, and rendering it convenient. This is a manifest extortion, and an infringement of the natural rights of mankind. For the division of lands, and their becoming private property, could never deprive any man of the right of passage, when not the least injury is done to the person through whose territory he passes. Every man inherits this right from nature, and cannot justly be forced to purchase it. (47)

But the arbitrary or customary law of nations at present tolerates this abuse, while it is not carried to such an excess as to destroy commerce, People do not, however, submit without difficulty, except in the case of those tolls which are established by ancient usage: and the imposition of new ones is often a source of disputes. The Swiss formerly made war on the Dukes of Milan, on account of some oppressions of this nature. This right of tolls is also further abused, when the passenger is obliged to contribute too much, and what bears no proportion to the expense of preserving these public passages. (48)

At present, to avoid all difficulty and oppression, nations settle these points by treaties.


(43) This is a very slight allusion to the very important regulation of import and export duties, bounties and drawbacks, which since Vattel wrote, have become extensive branches of law, highly important to be studied. See an attempt of the editor to arrange them, in 1 Chitty's Commercial Law, Index, titles Import and Export. — C,

(44) But although, since Vattel wrote, France greatly advanced in the improvement of her roads, yet England has surpassed all other nations in the facilities of internal intercourse by new canals, railways, and other improvements sanctioned by the legislature. With respect to which, see the enactments and decisions. 2 Chitty's Commercial Law, 127 to 141. — C.

(45) This position of a government's right to oblige the people to labour on the roads as thus stated, would startle an Englishman. In England there is no such direct power. The 34 Geo. 3, c. 74, s. 4, it is true, requires each occupier to send his carts and horses, and labourers, to work on the roads; but then, if he neglect to do so. he is subject only to a moderate penalty, just sufficient to enable the surveyor to hire the like assistance elsewhere: and as to men, even a pauper is subject to no penalty for refusing to work, excepting that, if he does so, he will not then be entitled to parochial relief. If he work, he is entitled to pay in money, or supply of proper food in return for his labour. — C.

(46) As to the right to toll, &c., see Grotius, b. ii. chap. 2, § 14, p. 154; Puffendorf, book iii. chap. 3 § 6, p. 29,30; 1 Bla. Com. 287; 1 Chitty's Commercial Law, 103 to 106; 2 ld. 139,140. It has been observed, that of all the taxes with which the inhabitants of this country are burdened, there is perhaps none so odious as the turnpike duty. On the continent no such interruption in travelling is experienced, and tolls have been abolished on the northern side of the metropolis, London. Lord Byron, in his eulogy upon English roads, humorously observes —

"What a delightful thing's a turnpike road,
So smooth, so level, such a mode of shaving
The earth, as scarce the eagle in the broad
Air can accomplish with his wide wings waving
Had such been cut in Phaeton's time, the god
Had told his son to satisfy his craving
With the York mail — but onward as we roll —
Surgit amari aliquid the toll.
Cant. x 78. — C.

(47) This position requires explanation and qualification. As respects a public navigable river, every part of the navigable stream must ever remain free and open from its communication with the sea to its extreme navigable point; but the absolute right to approach it on each side, can only be by public and general ways. Consequently, if an individual have land adjoining a river, ho may reasonably refuse permission to any person to go over it to approach the river, and demand any sum he thinks fit for the permission, unless there be a public way over it. Nor have the public any right at common law to tow on the banks of an ancient navigable river; Ball v. Herbert, 3 Term Rep. 253; though it may exist by custom or prescription. Pierce v. Pauconberge, 1 Burr. 292. In the absence of such custom or prescription, no right to approach a river over private grounds exists. Parthericke v. Mason, 2 Chitty's Rep. 658; Wyatt v. Thompson, 1 Esp. Rep. 252. (Chess v. Manoven, 3 Watts, Rep. 219; Cooper v. Smith, 9 Serg. & Rawle, 26.) So, if a private individual make and repair a bridge over a river, he may insist upon any person using it paying him a toll, as in the instance of Putney and Fulham bridge. In these cases the demand of an exorbitant toll may be illiberal, but is no more illegal than a nation's refusing to sell its superfluous produce, or to admit free passage through its country. The right to pass at a moderate toll is a moral but imperfect right, ante, § 91. — C.

(48) See n. 47, ante.


The LAW OF NATIONS - BOOK I.

CHAP. X.

OF MONEY AND EXCHANGE.

§ 105. Establishment of money. (49)

IN the first ages, after the introduction of private property, people exchanged their superfluous commodities and effects for those they wanted. Afterwards gold and silver became the common standard of the value of all things: and to prevent the people from being cheated, the mode was introduced of stamping pieces of gold and silver in the name of the state, with the figure of the prince, or some other impression, as the seal and pledge of their value. This institution is of great use and infinite convenience: it is easy to see how much it facilitates commerce, — Nations or sovereigns cannot therefore bestow too much attention on an affair of such importance.

§ 106. Duty of the nation or prince with respect to the coin.

The impression on the coin becoming the seal of its standard and weight, a moment's reflection will convince us that the coinage of money ought not to be left indiscriminately free to every individual; for, by that means, frauds would become too common — the coin would soon lose the public confidence; and this would destroy a most useful institution. Hence money is coined by the authority and in the name of the state or prince, who are its surety; they ought, therefore, to have a quantity of it coined sufficient to answer the necessities of the country, and to take care that it be good, that is to say, that its intrinsic value bear a just proportion to its extrinsic or numerary value.

It is true, that, in a pressing necessity, the state would have a right to order the citizens to receive the coin at a price superior to its real value; but as foreigners will not receive it at that price, the nations gains nothing by this proceeding; it is only a temporary palliative for the evil, without effecting a radical cure. This excess of value, added in an arbitrary manner to the coin, is a real debt which the sovereign contracts with individuals: and, in strict justice, this crisis of affairs being over, that money ought to be called in at the expense of the state, and paid for in other specie, according to the natural standard: otherwise, this kind of burden, laid on in the hour of necessity, would fall solely on those who received this arbitrary money in payment, which would be unjust. Besides, experience has shown that such a resource is destructive to trade, by destroying the confidence both of foreigners and citizens — raising in proportion the price of every thing — and inducing every one to lock up or send abroad the good old specie; whereby a temporary stop is put to the circulation of money. So that it is the duty of every nation and of every sovereign to abstain, as much as possible, from so dangerous an experiment, and rather to have recourse to extraordinary taxes and contributions to support the pressing exigencies of the state.1

§ 107. Their rights in this respect

Since the state is surely for the goodness of the money and its currency, the public authority alone has the right of coining it. Those who counterfeit it, violate the rights of the sovereign, whether they make it of the same standard and value or not. These are called false-coiners, and their crime is justly considered as one of the most heinous nature. For if they coin base money, they rob both the public and the prince; and if they coin good, they usurp the prerogative of the sovereign. They will never be inclined to coin good money unless there be a profit on the coinage: and in this case they rob the state of a profit which exclusively belongs to it. In both cases they do an injury to the sovereign; for the public faith being surety for the money, the sovereign alone has a right to have it coined. For this reason the right of coining is placed among the prerogatives of majesty, and Bodinus relates,2 That Sigismund Augustus, king of Poland, having granted this privilege to the duke of Prussia, in the year 1543, the states of the country passed a decree in which it was asserted that the king could not grant that privilege, it being inseparable from the crown. The same author observes, that, although many lords and bishops of France had formerly the privilege of coining money, it was still considered as coined by the king's authority: and the kings of France at last withdrew all those privileges, on account of their being often abused.

§ 108. How one nation may injure another in the article of coin.

From the principles just laid down, it is easy to conclude, that if one nation counterfeits the money of another, or if she allows and protects false-coiners who presume to do it, she does that nation an injury. But commonly criminals of this class find no protection anywhere — all princes being equally interested in exterminating them. (50)

§ 109. Of exchange, and the laws of commerce.

There is another custom more modern, and of no less use to commerce than the establishment of coin, namely exchange, or the traffic of bankers, by means of which a merchant remits immense sums from one end of the world to the other, at a very trifling expense, and, if he pleases, without risk. For the same reason that sovereigns are obliged to protect commerce, they are obliged to support this custom, by good laws, in which every merchant, whether citizen or foreigner, may find security. In general, it is equally the interest and the duty of every nation to have wise and equitable commercial laws established in the country.


(49) The modern law of nations, and the municipal law of England, as to coin, bullion, and money, will be found collected in 1 Bla. Com 276 to 280; 4 Id. 84 to 120; 1 Chitty's Commercial Law, 583; 2 Id. 179 to 187, and statutes and decisions there collected. — C.

1. In Boizard's Treatise on Coin, we find the following observations: "It is worthy of remark, that, when our kings debased the coin, they kept the circumstance a secret from the people: — witness the ordinance of Philip de Valois in 1350, by which he ordered Tournois Doubles to be coined 2d 5 1/3 gr. fine, which was, in fact, a debasement of the coin. In that ordinance, addressing the officers of the mint, he says — Upon the oath by which you are bound to the king, keep this affair as secret as you possibly can, that neither the bankers nor others may, by your means, acquire any knowledge of it; for if, through you, it comes to be known, you shall be punished for the offence in such manner as shall serve as an example to others." — The same author quotes other similar ordinances of the same king, and one issued by the Dauphin, who governed the kingdom as regent during the captivity of King John, dated June 27, 1360, by virtue of which the mint-masters, directing the officers engaged in the coinage to coin white Deniers 1d. 12 gr. fine, at the same time expressly command them to keep this order secret, and, "if any persons should make inquiry respecting their standard, to maintain that they were 2d. fine." Chap. xxix.

The kings [of France] had recourse to this strange expedient in cases of urgent necessity; but they saw its injustice. — The same author, speaking of the debasement of coin, or the various modes of reducing its intrinsic value, says — "These expedients are but rarely resorted to, because they give occasion to the exportation or melting down of the good specie, and to the introduction and circulation of foreign coin — raise the price of every thing — impoverish individuals — diminish the revenue, which is paid in specie of inferior value — and sometimes put a total stop to commerce. This truth has been so well understood in all ages, that those princes who had recourse to one or other of these modes of debasing the coin in difficult times, ceased to practise it the moment the necessity ceased to exist." We have, on this subject, an ordinance of Philip the Fair, issued in May, 1295, which announces, that, "The king having reduced the coin both in fineness and weight, and expecting to be obliged to make a further reduction in order to retrieve his affairs, — but knowing himself to be, in conscience, responsible for the injury caused to the state by such reduction, — pledges himself to the people of his kingdom, by solemn charter, that, as soon as his affairs are retrieved, he will restore the coin to its proper standard and value, at his own private cost and expense, and will himself bear all the loss and waste. And, in addition to this engagement, Dame Joan, Queen of France and Navarre, pledges her revenues and dower for the same purpose." Note. edit A.D. 1797.

2. In his Republic, book i, chap. x. (50) This is a sound principle, which ought to be extended so as to deny effect to any fraud upon a foreign nation or its subjects. But in England a narrow and immoral policy prevails of not noticing frauds upon the revenue of a foreign state. Roach v. Edie, 6 Term Rep. 425; Boucher v. Lawrence, R.T. Hardw. 198; Holman v. Johnson, Cowp. 343; James v, Catherwood, 3 Dowl. & Ryl. 190, {Cambiooso's Ex. v. Maffet's Assignees, 2 Wash, C.C. Rep. 99.} And so far has this narrow doctrine been carried, in disgrace of this country, that, in Smith v. Marconnay, 2 Peake's Rep. 81, it was held, that the maker of paper in England, knowingly made by him for the purpose of forging assignats upon the same, to be exported to France in order to commit frauds there on other persons, might recover damages for not accepting such paper pursuant to contract. So a master of an English ship was even allowed to recover salvage for bringing home his captured vessel, by deceptively inducing the enemy to release the vessel on his giving a ransom bill, payment of which he look care to countermand in London. 2 Dodson's R. 74.


The LAW OF NATIONS - BOOK I.

CHAP. XI.

SECOND OBJECT OF A GOOD GOVERNMENT, —
TO PROCURE THE TRUE HAPPINESS OF THE NATION.

§ 110. A nation ought to labour after its own happiness.

LET us continue to lay open the principal objects of a good government. What we have said in the five preceding chapters relates to the care of providing for the necessities of the people, and procuring plenty in the state: this is a point of necessity; but it is not sufficient for the happiness of a nation. Experience shows that a people may be unhappy in the midst of all earthly enjoyments, and in the possession of the greatest riches. Whatever may enable mankind to enjoy a true and solid felicity, is a second object that deserves the most serious attention of the government. Happiness is the point where centre all those duties which individuals and nations owe to themselves; and this is the great end of the law of nature. The desire of happiness is the powerful spring that puts man in motion: felicity is the end they all have in view, and it ought to be the grand object of the public will (Prelim. § 5). It is then the duty of those who form this public will, or of those who represent it — the rulers of the nation — to labour for the happiness of the people, to watch continually over it, and to promote it to the utmost of their power.

§ 111. Instruction.

To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found; that is, in their own perfection, — and to teach them the means of obtaining it. The sovereign cannot, then, take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline. Let us leave a hatred of the sciences to the despotic tyrants of the east: they are afraid of having their people instructed, because they choose to rule over slaves. But though they are obeyed with the most abject submission, they frequently experience the effects of disobedience and revolt. A just and wise prince feels no apprehensions from the light of knowledge: he knows that it is ever advantageous to a good government. If men of learning know that liberty is the natural inheritance of mankind; on the other hand they are more fully sensible than their neighbours, how necessary it is, for their own advantage, that this liberty should be subject to a lawful authority: — incapable of being slaves, they are faithful subjects.

§ 112. Education of youth.

The first impressions made on the mind are of the utmost importance for the remainder of life. In the tender years of infancy and youth, the human mind and heart easily receive the seeds of good or evil. Hence the education of youth is one of the most important affairs that deserve the attention of the government. It ought not to be entirely left to fathers. The most certain way of forming good citizens is to found good establishments for public education, to provide them with able masters — direct them with prudence — and pursue such mild and suitable measures, that the citizens will not neglect to take advantage of them. How admirable was the education of the Romans, in the flourishing ages of their republic, and how admirably was it calculated to form great men! The young men put themselves under the patronage of some illustrious person; they frequented his house, accompanied him wherever he went, and equally improved by his instructions and example: their very sports and amusements were exercises proper to form soldiers. The same practice prevailed at Sparta; and this was one of the wisest institutions of the incomparable Lycurgus. That legislator and philosopher entered into the most minute details respecting the education of youth,1 being persuaded that on that depended the prosperity and glory of his republic.

§ 113. Arts and sciences.

Who can doubt that the sovereign — the whole nation — ought to encourage the arts and sciences? To say nothing of the many useful inventions that strike the eye of every beholder, — literature and the polite arts enlighten the mind and soften the manners: and if study does not always inspire the love of virtue, it is because it sometimes, and even too often, unhappily meets with an incorrigibly vicious heart. The nation and its conductors ought then to protect men of learning and great artists, and to call forth talents by honours and rewards. Let the friends of barbarism declaim against the sciences and polite arts; — let us, without deigning to answer their vain reasonings, content ourselves with appealing to experience. Let us compare England, France, Holland, and several towns of Switzerland and Germany, to the many regions that lie buried in ignorance, and see where we can find the greater number of honest men and good citizens. It would be a gross error to oppose against us the example of Sparta, and that of ancient Rome. They, it is true, neglected curious speculations, and those branches of knowledge and art that were purely subservient to pleasure and amusement; but the solid and practical sciences — morality, jurisprudence, politics, and war — were cultivated by them, especially by the Romans, with a degree of attention superior to what we bestow upon them.

In the present age, the utilily of literature and the polite arts is pretty generally acknowledged, as is likewise the necessity of encouraging them. The immortal Peter I. thought that without their assistance he could not entirely civilize Russia, and render it flourishing. In England, learning and abilities lead to honour and riches. Newton was honoured, protected, and rewarded while living, and after his death, his tomb was placed among those of kings. France also, in this respect, deserves particular praise; to the munificence of her kings she is indebted for several establishments that are no less useful than glorious. The Royal Academy of Sciences diffuses on every side the light of knowledge and the desire of instruction. Louis XV. furnished the means of sending to search, under the equator and the polar circle, for the proof of an important truth; and we at present know what was before only believed on the strength of Newton's calculations. Happy will that kingdom be, if the too general taste of the age does not make the people neglect solid knowledge, to give themselves up to that which is merely amusing, and if those who fear the light do not succeed in extinguishing the blaze of science!

§ 114. Freedom of philosophical discussion.

I speak of the freedom of philosophical discussion, which is the soul of the republic of letters. What can genius produce, when trammelled by fear? Can the greatest man that ever lived contribute much towards enlightening the minds of his fellow-citizens, if he finds himself constantly exposed to the cavils of captious and ignorant bigots — if he is obliged to be continually on his guard, to avoid being accused by innuendo-mongers of indirectly attacking the received opinions? I know that liberty has its proper bounds — that a wise government ought to have an eye to the press, and not to allow the publication of scandalous productions, which attack morality, government, or the established religion. But yet, great care should be taken not to extinguish a light that may afford the state the most valuable advantages. Few men know how to keep a just medium; and the office of literary censor ought to be intrusted to none but those who are at once both prudent and enlightened. Why should they search in a book for what the author does not appear to have intended to put into it? And when a writer's thoughts and discourses are wholly employed on philosophy, ought a malicious adversary to be listened to, who would set him at variance with religion? So far from disturbing a philosopher on account of his opinions, the magistrate ought to chastise those who publicly charge him with impiety, when in his writings he shows respect to the religion of the state. The Romans seem to have been formed to give examples to the universe. That wise people carefully supported the worship and religious ceremonies established by law, and left the field open to the speculations of philosophers. Cicero — a senator, a consul, an augur — ridicules superstition, attacks it, and demolishes it in his philosophical writings; and, in so doing, he thought he was only promoting his own happiness and that of his fellow citizens: but he observes that "to destroy superstition is not destroying religion; for," says he, "it becomes a wise man to respect the institutions and religious ceremonies of his ancestors: and it is sufficient to contemplate the beauty of the world, and the admirable order of the celestial bodies, in order to be convinced of the existence of an eternal and all-perfect being, who is entitled to the veneration of the human race."2 And in his Dialogues on the Nature of the Gods, he introduces Cotta the academic, who was high-priest, attacking with great freedom the opinions of the stoics, and declaring that he should always be ready to defend the established religion, from which he saw the republic had derived great advantages; that neither the learned nor the ignorant should make him abandon it: he then says to his adversary," These are my thoughts, both as pontiff and as Cotta. But do you, as a philosopher, bring me over to your opinion by the strength of your arguments: for a philosopher ought to prove to me the truth of the religion he would have me embrace, whereas I ought in this respect to believe our forefathers, even without proof."3

Let us add experience to these examples and authorities. Never did a philosopher occasion disturbances in the state, or in religion, by his opinions: they would make no noise among the people, nor ever offend the weak, if malice or intemperate zeal did not take pains to discover a pretended venom lurking in them. It is by him who endeavours to place the opinions of a great man in opposition to the doctrines and worship established by law, that the state is disturbed, and religion brought into danger.

§ 115. Love of virtue, and abhorrence of vice, to be excited.

To instruct the nation is not sufficient: — in order to conduct it to happiness, it is still more necessary to inspire the people with the love of virtue, and the abhorrence of vice. Those who are deeply versed in the study of morality are convinced that virtue is the true and only path that leads to happiness; so that its maxims are but the art of living happily; and he must be very ignorant of politics, who does not perceive how much more capable a virtuous nation will be, than any other, of forming a state that shall be at once, happy, tranquil, flourishing, solid, respected by its neighbours, and formidable to its enemies. The interest of the prince must then concur with his duty and the dictates of his conscience, in engaging him to watch attentively over an affair of such importance. Let him employ all his authority in order to encourage virtue, and suppress vice: let the public establishments be all directed to this end: let his own conduct, his example, and the distribution of favours, posts, and dignities, all have the same tendency. Let him extend his attention even to the private life of the citizens, and banish from the state whatever is only calculated to corrupt the manners of the people. It belongs to politics to teach him in detail the different means of attaining this desirable end — to show him those he should prefer, and those he ought to avoid on account of the dangers that might attend the execution, and the abuses that might be made of them. We shall here only observe, in general, that vice may be suppressed by chastisements, but that mild and gentle methods alone can elevate men to the dignity of virtue; it may be inspired, but it cannot be commanded.

§ 116. The nation may hence discover the intention of its rulers.

It is an incontestable truth, that the virtues of the citizens constitute the most happy dispositions that can be desired by a just and wise government. Here then is an infallible criterion, by which the nation may judge of the intentions of those who govern it. If they endeavour to render the great and the common people virtuous, their views are pure and upright; and you may rest assured that they solely aim at the great end of government — the happiness and glory of the nation. But if they corrupt the morals of the people, spread a taste for luxury, effeminacy, a rage for licentious pleasures — if they stimulate the higher orders to a ruinous pomp and extravagance — beware, citizens! beware of those corruptors! they only aim at purchasing slaves in order to exercise over them an arbitrary sway.

If a prince has the smallest share of moderation, he will never have recourse to these odious methods. Satisfied with his superior station and the power given him by the laws, he proposes to reign with glory and safety; ho loves his people, and desires to render them happy. But his ministers are in general impatient of resistance, and cannot brook the slightest opposition: if he surrenders to them his authority, they are more haughty and intractable than their master: they feel not for his people the same love that he feels: "let the nation be corrupted (say they) provided it do but obey." They dread the courage and firmness inspired by virtue, and know that the distributor of favours rules as he pleases over men whose hearts are accessible to avarice. Thus a wretch who exercises the most infamous of all professions, perverts the inclinations of a young victim of her odious traffic; she prompts her to luxury and epicurism; she inspires her with voluptuousness and vanity, in order the more certainly to betray her to a rich seducer. This base and unworthy creature is sometimes chastised by the magistrate; but the minister, who is infinitely more guilty, wallows in wealth, and is invested with honour and authority. Posterity, however, will do him justice, and detest the corruptor of a respectable nation.

§ 117. The state, or the public person, ought to perfect its understanding and will.

If governors endeavoured to fulfil the obligations which the law of nature lays upon them with respect to themselves, and in their character of conductors of the state, they would be incapable of ever giving into the odious abuse just mentioned. Hitherto we have considered the obligation a nation is under to acquire knowledge and virtue, or to perfect its understanding and will; — that obligation, I say, we have considered in relation to the individuals that compose a nation; it also belongs in a proper and singular manner to the conductors of the state. A nation, while she acts in common, or in a body, is a moral person (Prelim. § 2) that has an understanding and will of her own, and is not less obliged than any individual to obey the laws of nature (Book I. § 5), and to improve her faculties (Book I. § 21). That moral person resides in those who are invested with the public authority, and represent the entire nation. Whether this be the common council of the nation, an aristocratic body, or a monarch, this conductor and representative of the nation, this sovereign of whatever kind, is therefore indispensably obliged to procure all the knowledge and information necessary to govern well, and to acquire the practice and habit of all the virtues suitable to a sovereign.

And as this obligation is imposed with a view to the public welfare, he ought to direct all his knowledge, and all his virtues, to the safety of the state, the end of civil society.

§ 118. And to direct the knowledge and virtues of the citizens to the welfare of the society.

He ought even to direct, as much as possible, all the abilities, the knowledge, and the virtues of the citizens to this great end; so that they may not only be useful to the individuals who possess them, but also to the state. This is one of the great secrets in the art of reigning. The state will be powerful and happy, if the good qualities of the subject, passing beyond the narrow sphere of private virtues, become civic virtues. This happy disposition raised the Roman republic to the highest pitch of power and glory.

§ 119. Love for their country. (51)

The grand secret of giving to the virtues of individuals a turn so advantageous to the state, is to inspire the citizens with an ardent love for their country. It will then naturally follow, that each will endeavour to serve the state, and to apply all his powers and abilities to the advantage and glory of the nation. This love of their country is natural to all men. The good and wise Author of nature has taken care to bind them, by a kind of instinct, to the places where they received their first breath, and they love their own nation, as a thing with which they are intimately connected. But it often happens that some causes unhappily weaken or destroy this natural impression. The injustice or the severity of the government loo easily effaces it from the hearts of the subjects; can self-love attach an individual to the affairs of a country where every thing is done with a view to a single person? — far from it: — we see, on the contrary, that free nations are passionately interested in the glory and the happiness of their country. Let us call to mind the citizens of Rome in the happy days of the republic, and consider, in modern times, the English and the Swiss.

§ 120. In individuals.

The love and affection a man feels for the state of which he is a member, is a necessary consequence of the wise and rational love he owes to himself, since his own happiness is connected with that of his country. This sensation ought also to flow from the engagements he has entered into with society. He has promised to procure its safety and advantage as far as in his power: and how can he serve it with zeal, fidelity, or courage, if he has not a real love for it?

§ 121. In the nation or state itself, and in the sovereign.

The nation in a body ought doubtless to love itself, and desire its own happiness as a nation. The sensation is too natural to admit of any failure in this obligation: but this duty relates more particularly to the conductor, the sovereign, who represents the nation, and acts in its name. He ought to love it as what is most dear to him, to prefer it to every thing, for it is the only lawful object of his care, and of his actions, in every thing he does by virtue of the public authority. The monster who does not love his people is no better than an odious usurper, and deserves, no doubt, to be hurled from the throne. There is no kingdom where the statue of Codrus ought not to be placed before the palace of the sovereign. That magnanimous king of Athens sacrificed his life for his people.4 That great prince and Louis XII, are illustrious models of the tender love a sovereign owes to his subjects.

§ 122. Definition of the term country.

The term, country, seems to be pretty generally known: but as it is taken in different senses, it may not be unuseful to give it here an exact definition. It commonly signifies the State of which one is a member: in this sense we have used it in the preceding sections; and it is to be thus understood in the law of nations.

In a more confined sense, and more agreeably to its etymology, this term signifies the state, or even more particularly the town or place where our parents had their fixed residence at the moment of our birth. In this sense, it is justly said, that our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to choose another country, — that is, to become a member of another society; so. when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in preference to every other state, that he is bound to serve with his utmost efforts.

§ 123. How shameful and criminal to injure our country.

If every man is obliged to entertain a sincere love for his country, and to promote its welfare as far as in his power, it is a shameful and detestable crime to injure that very country. He who becomes guilty of it, violates his most sacred engagements, and sinks into base ingratitude: he dishonours himself by the blackest perfidy, since he abuses the confidence of his fellow-citizens, and treats as enemies those who had a right to expect his assistance and services. We sec traitors to their country only among those men who are solely sensible to base interest, who only seek their own immediate advantage, and whose hearts are incapable of every sentiment of affection for others. They are, therefore, justly detested by mankind in general, as the most infamous of all villains.

§ 124. The glory of good citizens (51) Examples

On the contrary, those generous citizens are loaded with honour and praise, who, not content with barely avoiding a failure in duly to their country, make noble efforts in her favour, and are capable of making her the greatest sacrifices. The names of Brutus, Curtius, and the two Decii, will live as long as that of Rome. The Swiss will never forget Arnold de Winkelried, that hero, whose exploit would have deserved to be transmitted to posterity by the pen of a Livy. He truly devoted his life for his country's sake: but he devoted it as a general, as an undaunted warrior, not as a superstitious visionary. That nobleman, who was of the country of Underwald, seeing, at the battle of Sempach, that his countrymen could not break through the Austrians, because the latter, armed cap-a-pie, had dismounted and forming a close battalion, presented a front covered with steel, and bristling with pikes and lances, — formed the generous design of sacrificing himself for his country. "My friends," said he to the Swiss, who began to be dispirited, " I will this day give my life to procure you the victory: I only recommend to you my family: follow me, and act in consequence of what you see me do." At these words he ranged them in that form which the Romans called cuneus, and placing himself in the point of the triangle, marched to the centre of the enemy, when, embracing between his arms as many of the enemy's pikes as he could compass, he threw himself to the ground, thus opening for his followers a passage to penetrate into the midst of this thick battalion. The Austrians, once broken, were conquered, as the weight of their armour then became fatal to them, and the Swiss obtained a complete victory.5


1. See Xenophon, Lacedæmon. Respublica.

2. Nam, ut vere loquamur, superstitio fusa per gentes oppressit omnium fere animos, atque omnium imbecillitatem occupavit.... multum enim et nobismet ipsis et nostris profuturi videbamur, si eam funditus sustulissemus. Nec vero (id enim diligenter intelligi volo) superstitione tollendâ religio tollitur. Nam et majorum instituta tueri, sacris cæremonilsque retinendis, sapientis est: et esse præstantem aliquam æternamque naturam, et eam suspiciendam, admirandamque hominum generi, pulchritudo mundi, ordoque coelstium cogit confiteri. De Divinatione, lib. ii.

3. Harum ego religionem nullam unquam contemnendam putavi: mihique ita persuasi, Romulum auspiciis, Numam sacris constitutis, fundamenta jecisse nostræ civitatis, quæ nunquam profecto sine summa placatione Deorum immortalium tanta esse potjisset Habes, Balbe, quid Cotta, quid pontifex sentiat. Fac nunc ego intelligam, quid tu sentias: a te enim philosophe rationem accipere debeo religionis; majoribus autem nostris, etiam nulla ratione reddita, credere. De Natura Decorum, lib. iii.

4. His country being attacked by the Heraclidæ, he consulted the oracle of Apollo; and being answered, that the people whose chief should be slain should remain victorious, Codrus disguised himself, and rushing into the battle, was killed by one or the enemy's soldiers.

(51) See observations, post, § 190, p. 92. — C.

5. This affair happened in the year 1386. The Austrian army consisted of four thousand chosen men, among whom were a great number of princes, counts and nobility of distinguished rank, all armed from head to foot. The Swiss were no more than thirteen hundred men. ill armed. In this battle, the duke of Austria perished, with two thousand of his forces, in which number were six hundred and seventy-six noblemen of the best families in Germany. History of the Helvetic Confederacy, by De Wateville, vol. i. p. 183. — Tschudl — Etterlln. — Schodeler. — Ræbman. — (See the national consequences of this valour, stated post. § 190, pp. 92-3.)


The LAW OF NATIONS - BOOK I.

CHAP. XII.

OF PIETY AND RELIGION.

§ 125. Of piety.

PIETY and religion have an essential influence on the happiness of a nation, and, from their importance, deserve a particular chapter. Nothing is so proper as piety to strengthen virtue, and give it its due extent. By the word Piety, I mean a disposition of soul that leads us to direct all our actions towards the Deity, and to endeavour to please him in every thing we do. To the practice of this virtue all mankind are indispensably obliged: it is the purest source of their felicity; and those who unite in civil society are under still greater obligations to practise it. A nation ought then to be pious. The superiors intrusted with the public affairs should constantly endeavour to deserve the approbation of their divine Master; and whatever they do in the name of the state, ought to be regulated by this grand view. The care of forming pious dispositions in all the people should be constantly one of the principal objects of their vigilance, and from this the state will derive very great advantages. A serious attention to merit, in all our actions, the approbation of an infinitely wise Being, cannot fail of producing excellent citizens. Enlightened piety in the people is the firmest support of a lawful authority; and, in the sovereign's heart, it is the pledge of the people's safety, and excites their confidence. Ye lords of the earth, who acknowledge no superior here below, what security can we have for the purity of your intentions, if we do not conceive you to be deeply impressed with respect for the common Father and Lord of men, and animated with a desire to please him?

§ 126. It ought to be attended with knowledge.

We have already insinuated that piety ought to be attended with knowledge. In vain would we propose to please God, if we know not the means of doing it. But what a deluge of evils arises, when men, heated by so powerful a motive, are prompted to take methods that are equally false and pernicious! A blind piety only produces superstitious bigots, fanatics, and persecutors, a thousand times more dangerous and destructive to society than libertines are. There have appeared barbarous tyrants who have talked of nothing but the glory of God, while they crushed the people, and trampled under foot the most sacred laws of nature. It was from a refinement of piety, that the anabaptists of the sixteenth century refused all obedience to the powers of the earth. James Clement and Ravaillac,1 those execrable parricides, thought themselves animated by the most sublime devotion.

§ 127. Of religion internal and external.

Religion consists in the doctrines concerning the Deity and the things of another life, and in the worship appointed to the honour of the Supreme Being. So far as it is seated in the heart, if is an affair of conscience, in which every one ought to be directed by his own understanding: but so far as it is external, and publicly established, it is an affair of state.

§ 128. Rights of individuals.

Every man is obliged to endeavour to obtain just ideas of God, to know his laws, his views with respect to his creatures, and the end for which they were created. Man doubtless owes the most pure love, the most profound respect to his Creator; and to keep alive these dispositions, and act in consequence of them, he should honour God in all his actions, and show, by the most suitable means, the sentiments that fill his mind. This short explanation is sufficient to prove that man is essentially and necessarily free to make use of his own choice in matters of religion. His belief is not to be commanded; and what kind of worship must that be which is produced by force? Worship consists in certain actions performed with an immediate view to the honour of God; there can be no worship proper for any man, which he does not believe suitable to that end. The obligation of sincerely endeavouring to know God, of serving him, and adoring him from the bottom of the heart, being imposed on man by his very nature, — it is impossible that, by his engagements with society, he should have exonerated himself from that duty. or deprived himself of the liberty which is absolutely necessary for the performance of it. It must then be concluded, that liberty of conscience is a natural and inviolable right. It is a disgrace to human nature, that a truth of this kind should stand in need of proof.

§ 129. Public establishment of religion

But we should take care not to extend this liberty beyond its just bounds. In religious affairs a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing what he pleases, without regard to the consequences it may produce on society. (52) The establishment of religion by law, and its public exercise, are matters of state, and are necessarily under the jurisdiction of the political authority. If all men are bound to serve God, the entire nation, in her national capacity is doubtless obliged to serve and honour him (Prelim. § 5), And as this important duty is to be discharged by the nation in whatever manner she judges best, — to the nation it belongs to determine what religion she will follow, and what public worship she thinks proper to establish.

§ 130. When there was yet no established religion.

If there be as yet no religion established by public authority, the nation ought to use the utmost care, in order to know and establish the best. That which shall have the approbation of the majority shall be received, and publicly established by law; by which means it will become the religion of the state, But if a considerable part of the nation is obstinately bent upon following another, it is asked — What does the law of nations require in such a case? Let us first remember that liberty of conscience is a natural right, and that there must be no constraint in this respect. There remain then but two methods to take, — either to permit this party of the citizens to exercise the religion they choose to profess, or to separate them from the society, leaving them their property, and their share of the country that belonged to the nation in common, — and thus to form two new states instead of one. The latter method appears by no means proper: it would weaken the nation, and thus would be inconsistent with that regard which she owes to her own preservation. It is therefore of more advantage to adopt the former method, and thus to establish two religions in the state. But if these religions are too incompatible; if there be reason to fear that they will produce divisions among the citizens and disorder in public affairs, there is a third method, a wise medium between the two former, of which the Swiss have furnished examples. The cantons of Glaris and Appenzel were, in the sixteenth century, each divided into two parts: the one preserved the Romish religion, and the other embraced the Reformation; each part has a distinct government of its own for domestic affairs; but on foreign affairs they unite, and form but one and the same republic, one and the same canton.

Finally, if the number of citizens who would profess a different religion from that established by the nation be inconsiderable; and if, for good and just reasons, it be thought improper to allow the exercise of several religions in the state — those citizens have a right to sell their lands, to retire with their families, and take all their property with them. For their engagements to society, and their submission to the public authority, can never oblige them to violate their consciences. If the society will not allow me to do that to which I think myself bound by an indispensable obligation, it is obliged to allow me permission to depart.

§ 131. When there is an established religion.

When the choice of a religion is already made, and there is one established by law, the nation ought to protect and support that religion, and preserve it as an establishment of the greatest importance, without, however, blindly rejecting the changes that may be proposed to render it more pure and useful: for we ought, in all things, to aim at perfection (§ 21). But as all innovations, in this case, are full or danger, and can seldom be produced without disturbances, they ought not to be attempted upon slight grounds, without necessity, or very important reasons. It solely belongs to the society, the state, the entire nation, to determine the necessity or propriety of those changes; and no private individual has a right to tempt them by his own authority, nor consequently to preach to the people a new doctrine. Let him offer his sentiments to the conductors of the nation, and submit to the orders he receives from them.

But if a new religion spreads, and becomes fixed in the minds of the people, as it commonly happens, independently of the public authority, and without any deliberation in common, it will be then necessary to adopt the mode of reasoning we followed in the preceding section on the case of choosing a religion; to pay attention to the number of those who follow the new opinions — to remember that no earthly power has authority over the consciences of men, — and to unite the maxims of sound policy with those of justice and equity.

§ 132. Duties and rights of the sovereign with regard to religion.

We have thus given a brief compendium of the duties and rights of a nation with regard to religion. Let us now come to those of the sovereign. These cannot be exactly the same as those of the nation which the sovereign represents. The nature of the subject opposes it; for in religion nobody can give up his liberty. To give a clear and distinct view of those rights and duties of the prince, and to establish them on a solid basis, it is necessary here to refer to the distinction we have made in the two preceding sections: if there is question of establishing a religion in a state that has not yet received one, the sovereign may doubtless favour that which to him appears the true or the best religion, — may have it announced to the people, and, by mild and suitable means, endeavour to establish it; — he is even bound to do this, because he is obliged to attend to every thing that concerns the happiness of the nation. But in this he has no right to use authority and constraint. Since there was no religion established in the society when he received his authority, the people gave him no power in this respect; the support of the laws relating to religion is no part of his office, and does not belong to the authority with which they intrusted him. Numa was the founder of the religion of the ancient Romans: but he persuaded the people to receive it. If he had been able to command in that instance, he would not have had recourse to the revelations of the nymph Egeria. Though the sovereign cannot exert any authority in order to establish a religion where there is none, he is authorized, and ever obliged, to employ all his power to hinder the introduction of one which he judges pernicious to morality and dangerous to the state. For he ought to preserve his people from every thing that may be injurious to them; and so far is a new doctrine from being an exception to this rule, that it is one of its most important objects. We shall see, in the following sections, what are the duties and rights of the prince in regard to the religion publicly established.

§ 133. Where there is an established religion

The prince, or the conductor, to whom the nation has intrusted the care of the government and the exercise of the sovereign power, is obliged to watch over the preservation of the received religion, the worship established by law, and has a right to restrain those who attempt to destroy or disturb it. But to acquit himself of this duty in a manner equally just and wise, he ought never to lose sight of the character in which he is called to act, and the reason of his being invested with it. Religion is of extreme importance to the peace and welfare of society; and the prince is obliged to have an eye to every thing in which the state is interested. This is all that calls him to interfere in religion, or to protect and defend it. It is therefore upon this footing only that he can interfere: consequently, he ought to exert his authority against those alone whose conduct in religious matters is prejudicial or dangerous to the state; but he must not extend it to pretended crimes against God, the punishment of which exclusively belongs to the Sovereign Judge, the searcher of hearts. Let us remember that religion is no farther an affair of state, than as it is exterior and publicly established: that of the heart can only depend on the conscience. The prince has no right to punish any persons but those that disturb society; and it would be very unjust in him to inflict pains and penalties on any person whatsoever for his private opinions when that person neither takes pains to divulge them, nor to obtain followers. It is a principle of fanaticism, a source of evils and of the most notorious injustice, to imagine that nail mortals ought to take up the cause of God, maintain his glory by acts of violence, and avenge him on his enemies. Let us only give to sovereigns, said a great statesman and an excellent citizen2 — let us give them, for the common advantage, the power of punishing whatever is injurious to charity in society. It appertains not to human justice to become the avenger of what concerns the cause of God.3 Cicero, who was as able and as great in state affairs as in philosophy and eloquence, thought like the Duke of Sully. In the laws he proposes relating to religion, he says, on the subject of piety and interior religion, "if any one transgresses, God will revenge it:" but he declares the crime capital that should be committed against the religious ceremonies established for public affairs, and in which the whole state is concerned.4 The wise Romans were very far from persecuting a man for his creed; they only required that people should not disturb the public order.

§ 134. Objects of his care, and the means he ought to employ.

The creeds or opinions of individuals, their sentiments with respect to the Deity, — in a word, interior religion — should, like piety, be the object of the prince's attention: he should neglect no means of enabling his subjects to discover the truth, and of inspiring them with good sentiments; but he should employ for this purpose only mild and paternal methods.5 Here he cannot command (§ 128). It is in external religion and its public exercise that his authority may be employed. His task is to preserve it, and to prevent the disorders and troubles it may occasion. To preserve religion, he ought to maintain it in the purity of its institution, to take care that it be faithfully observed in all its public acts and ceremonies, and punish those who dare to attack it openly. But he can require nothing by force except silence, and ought never to oblige any person to bear a part in external ceremonies: — by constraint, he would only produce disturbances or hypocrisy.

A diversity of opinions and worship has often produced disorders and fatal dissensions in a state: and for this reason, many will allow but one and the same religion. A prudent and equitable sovereign will, in particular conjunctures, see whether it be proper to tolerate or forbid the exercise of several different kinds of worship.

§ 135. Of toleration.

But, in general, we may boldly affirm that the most certain and equitable means of preventing the disorders that may be occasioned by difference of religion, is a universal toleration of all religions which contain no tenets that are dangerous either to morality or to the state. Let interested priests declaim! they would not trample under fool the laws of humanity, and those of God himself, to make their doctrine triumph, if it were not the foundation on which are erected their opulence, luxury, and power. Do but crush the spirit of persecution, — punish severely whoever shall dare to disturb others on account of their creed, and you will see all sects living in peace in their common country, and ambitious of producing good citizens. Holland, and the states of the King of Prussia, furnish a proof of this: Calvinists, Lutherans, Catholics, Pietists, Socinians, Jews, all live there in peace, because they are equally protected by the sovereign; and none are punished, but the disturbers of the tranquillity of others.

§ 136. What the prince ought to do when the nation is resolved to change its religion.

If in spite of the prince's care to preserve the established religion, the entire nation, or the greater part of it, should be disgusted with it, and desire to have it changed, the sovereign cannot do violence to his people, nor constrain them in an affair of this nature. The public religion was established for the safety and advantage of the nation: and, besides its proving inefficacious when it ceases to influence the heart, the sovereign has here no other authority than that which results from the trust reposed in him by the people, and they have only committed to him that of protecting whatever religion they think proper to profess.

§ 137. Difference of religion does not deprive a prince of his crown.

But at the same time it is very just that the prince should have the liberty of continuing in the profession of his own religion, without losing his crown. Provided that he protect the religion of the state, this is all that can be required of him. In general, a difference of religion can never make any prince forfeit his claims to the sovereignty, unless a fundamental law ordain it otherwise. The pagan Romans did not cease to obey Constantine when he embraced Christianity; nor did the Christians revolt from Julian after he had quitted it.6

§ 138. Duties and rights of the sovereign reconciled with those of the subject.

We have established liberty of conscience for individuals (§ 128). However, we have also shown that the sovereign has a right, and is even under an obligation, to protect and support the religion of the state, and not suffer any person to attempt to corrupt or destroy it, — that he may even, according to circumstances, permit only one kind of public worship throughout the whole country. Let us reconcile those different duties and rights, between which it maybe thought that there is some contradiction: — let us, if possible, omit no material argument on so important and delicate a subject.

If the sovereign will allow the public exercise of only one and the same religion, let him oblige nobody to do any thing contrary to his conscience; let no subject be forced to bear a part in a worship which he disapproves, or to profess a religion which he believes to be false; but let the subject on his part rest content with avoiding the guilt of a shameful hypocrisy; let him, according to the light of his own knowledge, serve God in private and in his own house — persuaded that Providence does not call upon him for public worship, since it has placed him in such circumstances that he cannot perform it without creating disturbances in the state. God would have us obey our sovereign, and avoid every thing that may be pernicious to society. These are immutable precepts of the law of nature: the precept that enjoins public worship is conditional, and dependent on the effects which that worship may produce. Interior worship is necessary in its own nature; and we ought to confine ourselves to it, in all cases in which it is most convenient. Public worship is appointed for the edification of men in glorifying God: but it counteracts that end, and ceases to be laudable, on those occasions when it only produces disturbances, and gives offence. If any one believes it absolutely necessary, let him quit the country where he is not allowed to perform it according to the dictates of his own conscience; let him go and join those who profess the same religion with himself.

§ 139. The sovereign ought to have the inspection of the affairs of religion, and authority over those who teach it.

The prodigious influence of religion on the peace and welfare of society incontrovertibly proves that the conductor of the state ought to have the inspection of what relates to it, and an authority over the ministers who teach it The end of society and of civil government necessarily requires that he who exercises the supreme power should be invested with all the rights without which he could not exercise it in a manner the most advantageous to the state. These are the prerogatives of majesty (§ 45), of which no sovereign can divest himself, without the express consent of the nation. The inspection of the affairs of religion, and the authority over its ministers, constitute, therefore, one of the most important of those prerogatives, since, without this power, the sovereign would never be able to prevent the disturbances that religion might occasion in the state, nor to employ that powerful engine in promoting the welfare and safety of the society. It would be certainly very strange that a multitude of men who united themselves in society for their common advantage, that each might, in tranquillity, labour to supply his necessities, promote his own perfection and happiness, and live as becomes a rational being: it would be very strange, I say, that such a society should not have a right to follow their own judgment in an affair of the utmost importance; to determine what they think most suitable with regard to religion; and to take care that nothing dangerous or hurtful be mixed with it. Who shall dare to dispute that an independent nation, has, in this respect as in all others, a right to proceed according to the light of conscience? and when once she has made choice of a particular religion and worship, may she not confer on her conductor all the power she possesses of regulating and directing that religion and worship, and enforcing their observance?

Let us not be told that the management of sacred things belongs not to a profane hand. Such discourses, when brought to the bar of reason, are found to be only vain declamations. There is nothing on earth more august and sacred than a sovereign; and why should God, who calls him by his providence to watch over the safety and happiness of a whole nation, deprive him of the direction of the most powerful spring that actuates mankind? The law of nature secures to him this right, with all others that are essential to good government; and nothing is to be found in Scripture that changes this disposition. Among the Jews, neither the king nor any other person could make any innovation in the law of Moses; but the sovereign attended to its preservation, and could chock the high priest when he deviated from his duty. Where is it asserted in the New Testament, that a Christian prince has nothing to do with religious affairs? Submission and obedience to the superior powers are there clearly and expressly enjoined. It were in vain to object to us the example of the apostles, who preached the gospel in opposition to the will of sovereigns: — whoever would deviate from the ordinary rules, must have a divine mission, and establish his authority by miracles.

No person can dispute that the sovereign has a right to take care that nothing contrary to the welfare and safety of the state be introduced into religion; and, consequently, he must have a right to examine its doctrines, and to point out what is to be taught, and what is to be suppressed in silence.

§ 140. He ought to prevent the abuse of the received religion.

The sovereign ought, likewise, to watch attentively, in order to prevent the established religion from being employed to sinister purposes, either by making use of its discipline to gratify hatred, avarice, or other passions, or presenting its doctrines in a light that may prove prejudicial to the state. Of wild reveries, seraphic devotions, and sublime speculations, what would be the consequences to society, if it entirely consisted of individuals whose intellects were weak, and whose hearts were easily governed? — the consequences would be a renunciation of the world, a general neglect of business and of honest labour. This society of pretended saints would become an easy and certain prey to the first ambitious neighbour; or if suffered to live in peace, it would not survive the first generation; both sexes, consecrating their chastity to God, would refuse to co-operate in the designs of their Creator, and to comply with the requisitions of nature and of the state. Unluckily for the missionaries, it evidently appears, even from Father Charlevoix' History of New France, that their labours were the principal cause of the ruin of the Hurons. That author expressly says, that a great number of those converts would think of nothing but the faith — that they forgot their activity and valour — that divisions arose between them and the rest of the nation, &c. That nation was, therefore, soon destroyed by the Iroquois, whom they had before been accustomed to conquer.7

§ 141. The sovereign's authority over the ministers of religion.

To the prince's inspection of the affairs and concerns of religion we have joined an authority over its ministers: without the latter power, the former would be nugatory and ineffectual; — they are both derived from the same principle. It is absurd, and contrary to the first foundations of society, that any citizens should claim an independence of the sovereign authority, in offices of such importance to the repose, the happiness, and safety of the state. This is establishing two independent powers in the same society — an unfailing source of division, disturbance, and ruin. There is but one supreme power in the state; the functions of the subordinate powers vary according to their different objects: — ecclesiastics, magistrates, and commanders of the troops, are all officers of the republic, each in his own department; and all are equally accountable to the sovereign.

§ 142. Nature of this authority.

A prince cannot, indeed, justly oblige an ecclesiastic to preach a doctrine, or to perform a religious rite, which the latter does not think agreeable to the will of God. But if the minister cannot, in this respect, conform to the will of his sovereign, he ought to resign his station, and consider himself as a man who is not called to fill it — two things being necessary for the discharge of the duty annexed to it, viz. to teach and behave with sincerity, according to the dictates of his own conscience, and to conform to the prince's intentions and the laws of the state. Who can forbear being filled with indignation, at seeing a bishop audaciously resist the orders of the sovereign, and the decrees of the supreme tribunals, solemnly declaring that he thinks himself accountable to God alone for the power with which he is intrusted?

§ 143. Rule to be observed with respect to ecclesiastics.

On the other hand, if the clergy are rendered contemptible, it will be out of their power to produce the fruits for which their ministry was appointed. The rule that should be followed with respect to them may be comprised in a few words; — let them enjoy a large portion of esteem; but let them have no authority, and still less any claim to independence. In the first place, let the clergy, as well as every other order of men, be, in their functions, as in every thing else, subject to the public power, and accountable to the sovereign for their conduct. Secondly, let the prince take care to render the ministers of religion respectable in the eyes of the people, let him trust them with the degree of authority necessary to enable them to discharge their duty with success; let him, in case of need, support them with the power he possesses. Every man in office ought to be vested with an authority commensurate to his functions; otherwise he will be unable to discharge them in a proper manner. I see no reason why the clergy should be excepted from this general rule; only the prince should be more particularly watchful that they do not abuse their authority; the affair being altogether the most delicate, and the most fruitful in dangers. If he renders the character of churchmen respectable, he should take care that this respect be not carried to such a superstitious veneration as shall arm the hand of an ambitious priest with a powerful engine with which he may force weak minds into whatever direction he pleases. When once the clergy become a separate body, they become formidable. The Romans (we shall often have occasion to recur to them) — the wise Romans elected from among the senators their pontifex-maximus and the principal ministers of the altar; they knew no distinction between clergy and laity; nor had they a set of gownsmen to constitute a separate class from the rest of the citizens.

§ 144. Recapitulation of the reasons which establish the sovereign's rights in matters of religion.

If the sovereign be deprived of this power in matters of religion, and this authority over the clergy, how shall he preserve the religion pure from the admixture of any thing contrary to the welfare of the state? How can he cause it to be constantly taught and practised in the manner most conducive to the public welfare? and, especially, how can he prevent the disorders it may occasion, either by its doctrines or the manner in which its discipline is exerted? These cares and duties can only belong to the sovereign, and nothing can dispense with his discharging them.

Hence we see that the prerogatives of the crown, in ecclesiastical affairs, have been constantly and faithfully defended by the parliaments of France. The wise and learned magistrates, of whom those illustrious bodies are composed, are sensible of the maxims which sound reason dictates on this subject. They know how important it is not to suffer an affair of so delicate a nature, so extensive in its connections and influence, and so momentous in its consequences, to be placed beyond the reach of the public authority. — What! Shall ecclesiastics presume to propose to the people, as an article of faith, some obscure and useless dogma, which constitutes no essential part of the received religion? — shall they exclude from the church, and defame those who do not show a blind obedience? — shall they refuse them the sacraments, and even the rites of burial? — and shall not the prince have power to protect his subjects, and preserve the kingdom from a dangerous schism?

The kings of England have asserted the prerogatives of their crown: they have caused themselves to be acknowledged heads of the church: and this regulation is equally approved by reason and sound policy, and is also conformable to ancient custom. The first Christian emperors exercised all the functions of heads of the church; they made laws on subjects relating to it,8 — summoned councils, and presided in them, — appointed and deposed bishops, &c. In Switzerland there are wise republics, whose sovereign knowing the full extent of the supreme authority, have rendered the ministers of religion subject to it, without offering violence to their consciences. They have prepared a formulary of the doctrines that are to be preached, and published laws of ecclesiastical discipline, such as they would have it exercised in the countries under their jurisdiction, — in order that those who will not conform to these establishments may not devote themselves to the service of the church. They keep all the ministers of religion in a lawful dependence, and suffer no exertion of church discipline but under their own authority. It is not probable that religion will ever occasion disturbances in these republics.

§ 145. Pernicious consequences of the contrary opinion.

If Constantine and his successors had caused themselves to be formally acknowledged heads of the church, — and if Christian kings and princes had, in this instance, known how to maintain the rights of sovereignty, — would the world ever have witnessed those horrid disorders produced by the pride and ambition of some popes and ecclesiastics, emboldened by the weakness of princes, and supported by the superstition of the people, — rivers of blood shed in the quarrels of monks, about speculative questions that were often unintelligible and almost always as useless to the salvation of souls as in themselves indifferent to the welfare of society — citizens and even brothers armed against each other, — subjects excited to revolt, and kings hurled from their thrones? Tantum religio potuit suadere malorum! The history of the emperors Henry IV., Frederick I., Frederick II., and Louis of Bavaria, is well known. Was it not the independence of the ecclesiastics, — was it not that system in which the affairs of religion are submitted to a foreign power, — that plunged France into the horrors of the league, and had nearly deprived her of the best and greatest of her kings? Had it not been for that strange and dangerous system, would a foreigner, Pope Sextus V., have undertaken to violate the fundamental law of the kingdom, and declared the lawful heir incapable of wearing the crown? Would the world have seen, at other times and in other places,9 the succession to the crown rendered uncertain by a bare informality — the want of a dispensation, whose validity was disputed, and which a foreign prelate claimed the sole right of granting? Would that same foreigner have arrogated to himself the power of pronouncing on the legitimacy of the issue of a king? Would kings have been assassinated in consequence of a detestable doctrine?10 Would a part of France have been afraid to acknowledge the best of their kings,11 until he had received absolution from Rome? And, would many other princes have been unable to give a solid peace to their people, because no decision could be formed within their own dominions on articles or conditions in which religion was interested?12

§ 146. The abuses particularized. 1. The power of the popes.

All we have advanced on this subject, so evidently flows from the notions of independence and sovereignty, that it will never be disputed by any honest man who endeavours to reason justly. If a state cannot finally determine every thing relating to religion, the nation is not free, and the prince is but half a sovereign. There is no medium in this case; either each state must, within its own territories, possess supreme power in this respect, as well as in all others, or we must adopt the system of Boniface VIII., and consider all Roman Catholic countries as forming only one state, of which the pope shall be the supreme head, and the kings subordinate administrators of temporal affairs, each in his province, — nearly as the sultans were formerly under the authority of the caliphs. We know that the above-mentioned pope had the presumption to write to Philip the Fair, king of France, Scire te volumus, quod in spiritualibus et temporalibus nobis subes13 —; "We would have thee know that thou art subject to us as well in temporals as in spirituals." And we may see in the canon law14 his famous bull Unam sanctam, in which he attributes to the church two swords, or a double power, spiritual and temporal, — condemns those who think otherwise, as men, who, after the example of the Manicheans, establish two principles, — and finally declares, that it is an article of faith, necessary to salvation, to believe that every human creature is subject to the Roman pontiff..15

We shall consider the enormous power of the popes as the first abuse that sprung from this system, which divests sovereigns of their authority in matters of religion. This power in a foreign court directly militates against the independence of nations and the sovereignty of princes. It is capable of overturning a state; and wherever it is acknowledged, the sovereign finds it impossible to exercise his authority in such a manner as is most for the advantage of the nation. We have already, in the last section, given several remarkable instances of this; and history presents others without number. The senate of Sweden having condemned Trollius, archbishop of Upsal, for the crime of rebellion, to be degraded from his see, and to end his days in a monastery, pope Leo X. had the audacity to excommunicate the administrator Steno and the whole senate, and sentenced them to rebuild, at their own expense, a fortress belonging to the archbishop, which they had caused to be demolished, and pay a fine of a hundred thousand ducats to the deposed prelate.16 The barbarous Christiern, king of Denmark, took advantage of this decree, to lay waste the territories of Sweden, and to spill the blood of the most illustrious of her nobility. Paul V. thundered out an interdict against Venice, on account of some very wise laws made with respect to the government of the city, but which displeased that pontiff, who thus threw the republic into an embarrassment, from which all the wisdom and firmness of the senate found it difficult to extricate it. Pius V., in his bull, in Cænna Domini, of the year 1567, declares, that all princes who shall introduce into their dominions any new taxes, of what nature soever they be, or shall increase the ancient ones, without having first obtained the approbation of the holy see, are ipso facto excommunicated. is not this a direct attack on the independence of nations, and a subversion of the authority of sovereigns?

In those unhappy times, those dark ages that preceded the revival of literature and the Reformation, the popes attempted to regulate the actions of princes, under the pretence of conscience — to judge the validity of their treaties — to break their alliances, and declare them null and void. But those attempts met with a vigorous resistance, even in a country which is generally thought to have then possessed valour alone, with a very small portion of knowledge. The pope's nuncio, in order to detach the Swiss from the interests of France, published a monitory against all those cantons that favoured Charles VIII., declaring them excommunicated, if within the space of fifteen days they did not abandon the cause of that prince, and enter into the confederacy which was formed against him; but the Swiss opposed this act, by protesting against it as an iniquitous abuse, and caused their protest to be publicly posted up in all the places under their jurisdiction: thus showing their contempt for a proceeding that was equally absurd and derogatory to the rights of sovereigns.17 We shall mention several other similar attempts, when we come to treat of the faith of treaties.

§ 147. 2. Important employments conferred by a foreign power.

This power in the popes has given birth to another abuse, that deserves the utmost attention from a wise government. We see several countries in which ecclesiastical dignities, and all the higher benefices, are distributed by a foreign power — by the pope — who bestows them on his creatures, and very often on men who are not subjects of the state. This practice is at once a violation of the nation's rights, and of the principles of common policy. A nation ought not to suffer foreigners to dictate laws to her, to interfere in her concerns, or deprive her of her natural advantages; and yet, how does it happen that so many states still tamely suffer a foreigner to dispose of posts and employments of the highest importance to their peace and happiness? The princes who consented to the introduction of so enormous an abuse were equally wanting to themselves and their people. In our times, the court of Spain has been obliged to expend immense sums, in order to recover, without danger, the peaceable possession of a right which essentially belonged to the nation or its head.

§ 148. 3. Powerful subjects dependent on a foreign court.

Even in those states whose sovereigns have preserved so important a prerogative of the crown, the abuse in a great measure subsists. The sovereign nominates, indeed, to bishoprics and great benefices; but his authority is not sufficient to enable the persons nominated to enter on the exercise of their functions; they must also have bulls from Rome.18 By this and a thousand other links of attachment, the whole body of the clergy in those countries still depend on the court of Rome;

from it they expect dignities; from it that purple, which, according to the proud pretensions of those who are invested with it, renders them equal to sovereigns. From the resentment of that court they have every thing to fear; and of course we see them almost invariably disposed to gratify it on every occasion. On the other hand, the court of Rome supports those clergy with all her might, assists them by her politics and credit, protects them against their enemies, and against those who would set bounds to their power — nay, often against the just indignation of their sovereign; and by this means attaches them to her still more strongly. Is it not doing an injury to the rights of society, and shocking the first elements of government, thus to suffer a great number of subjects, and even subjects in high posts, to be dependent on a foreign prince, and entirely devoted to him? Would a prudent sovereign receive men who preached such doctrines? There needed no more to cause all the missionaries to be driven from China.

§ 149. 4. The celibacy of the priests.

It was for the purpose of more firmly securing the attachment of churchmen that the celibacy of the clergy was invented. A priest, a prelate, already bound to the see of Rome by his functions and his hopes, is further detached from his country, by the celibacy he is obliged to observe. He is not connected with civil society by a family: his grand interests are all centered in the church; and, provided he has the pope's favour, he has no further concern: in what country soever he was born, Rome is his refuge, the centre of his adopted country. Everybody knows that the religious orders are a sort of papal militia, spread over the face of the earth, to support and advance the interests of their monarch. This is doubtless a strange abuse — a subversion of the first laws of society. But this is not all: if the prelates were married, they might enrich the state with a number of good citizens; rich benefices affording them the means of giving their legitimate children a suitable education. But what a multitude of men are there in convents, consecrated to idleness under the cloak of devotion! Equally useless to society in peace and war, they neither serve it by their labour in necessary professions, nor by their courage in arms: yet they enjoy immense revenues; and the people are obliged, by the sweat of their brow, to furnish support for these swarms of sluggards. What should we think of a husbandman who protected useless hornets, to devour the honey of his bees?19 It is not the fault of the fanatic preachers of overstrained sanctity, if all their devotees do not imitate the celibacy of the monks. How happened it that princes could suffer them publicly to extol, as the most sublime virtue, a practice equally repugnant to nature, and pernicious to society? Among the Romans, laws were made to diminish the number of those who lived in celibacy, and to favour marriage:20 but superstition soon attacked such just and wise regulations; and the Christian emperors, persuaded by churchmen, thought themselves obliged to abrogate them.21 Several of the fathers of the church has censured those laws against celibacy — doubtless, says a great man,22 with a laudable zeal for the things of another life; but with very little knowledge of the affairs of this. This great man lived in the church of Rome" — he did not dare to assert, in direct terms, that voluntary celibacy is to be condemned even with respect to conscience and the things of another life: — but it is certainly a conduct well becoming genuine piety, to conform ourselves to nature, to fulfil the views of the Creator, and to labour for the welfare of society. If a person is capable of rearing a family, let him marry, let him be attentive to give his children a good education: — in so doing, he will discharge his duty, and be undoubtedly in the road to salvation.

§ 150. 5. Enormous pretensions of the clergy. Pre-eminence.

The enormous and dangerous pretensions of the clergy are also another consequence of this system, which places every thing relating to religion beyond the reach of the civil power. In the first place, the ecclesiastics, under pretence of the holiness of their functions, have raised themselves above all other citizens, even the principal magistrates: and, contrary to the express injunctions of their master, who said to his apostles, seek not the first places at feasts, they have almost everywhere arrogated to themselves the first rank. Their head, in the Roman church, obliges sovereigns to kiss his feet; emperors have held the bridle of his horse; and if bishops or even simple priests do not at present raise themselves above their prince, it is because the times will not permit it: they have not always been so modest; and one of their writers has had the assurance to assert, that a priest is as much above a king as a man is above a beast.23 How many authors, better known and more esteemed than the one just quoted, have taken a pleasure in praising and extolling that silly speech attributed to the emperor Theodosius the First — Ambrose has taught me the great difference there is between the empire and the priesthood!

We have already observed that ecclesiastics ought to be honoured: but modesty, and even humility, should characterize them: and does it become them to forget it in their own conduct while they preach it to others? I would not mention a vain ceremonial, were it not attended with very material consequences, from the pride with which it inspires many priests, and the impressions it may make on the minds of the people. It is essentially necessary to good order, that subjects should behold none in society so respectable as their sovereign, and, next to him, those on whom he has devolved a part of his authority.

§ 151. 6. Independence immunities.

Ecclesiastics have not stopped in so fair a path. Not contented with rendering themselves independent with respect to their functions, — by the aid of the court of Rome, they have even attempted to withdraw themselves entirely, and in every respect, from all subjection to the political authority. There have been times when an ecclesiastic could not be brought before a secular tribunal for any crime whatsoever.24 The canon law declares expressly, It is indecent for laymen to judge a churchman.25 The popes Paul III., Pius V., and Urban VIII., excommunicated all lay judges who should presume to undertake the trial of ecclesiastics. Even the bishops of France have not been afraid to say on several occasions, that they did not depend on any temporal prince, and, in 1656, the general assembly of the French clergy had the assurance to use the following expressions — "The decree of council having been read, was disapproved by the assembly, because it leaves the king judge over the bishops, and seems to subject their immunities to his judges."26 There are decrees of the popes that excommunicate whoever imprisons a bishop. According to the principles of the church of Rome, a prince has not the power of punishing an ecclesiastic with death, though a rebel or a malefactor; — he must first apply to the ecclesiastical power; and the latter will, if it thinks proper, deliver up the culprit to the secular arm, after having degraded him.27 History affords us a thousand examples of bishops who remained unpunished, or were but slightly chastised, for crimes for which nobles of the highest rank forfeited their lives. John de Braganza, king of Portugal, justly inflicted the penalty of death on those noblemen who had conspired his destruction: but he did not dare to put to death the archbishop of Braga, the author of that detestable plot.28

For an entire body of men, numerous and powerful, to stand beyond the reach of the public authority, and be dependent on a foreign court, is an entire subversion of order in the republic, and a manifest diminution of the sovereignty. This is a mortal stab given to society, whose very essence it is, that every citizen should be subject to the public authority. Indeed the immunity which the clergy arrogate to themselves in this respect, is so inimical to the natural and necessary rights of a nation, that the king himself has not the power of granting it. But churchmen will tell us they derive this immunity from God himself; but till they have furnished some proof of their pretensions, let us adhere to this certain principle, that God desires the safety of states, and not that which will only be productive of disorder and destruction to them.

§ 152. 7. Immunity of church possessions.

The same immunity is claimed for the possessions of the church. The state might, no doubt, exempt those possessions from every species of lax at a time when they were scarcely sufficient for the support of the ecclesiastics; but, for that favour, these men ought to be indebted to the public authority alone, which has always a right to revoke it, whenever the welfare of the state makes it necessary. It being one of the fundamental and essential laws of every society, that, in case of necessity, the wealth of all the members ought to contribute proportionally to the common necessities — the prince himself cannot, of his own authority, grant a total exemption to a very numerous and rich body, without being guilty of extreme injustice to the rest of his subjects, on whom, in consequence of that exemption, the whole weight of the burden will fall.

The possessions of the church are so far from being entitled to an exemption on account of their being consecrated to God, that, on the contrary, it is for that very reason they ought to be taken the first for the use and safety of the state. For nothing is more agreeable to the common Father of mankind than to save a state from ruin. God himself having no need of anything, the consecration of wealth to him is but a dedication of it to such uses as shall be agreeable to him. Besides, a great part of the revenues of the church, by the confession of the clergy themselves, is destined for the poor. When the state is in necessity, it is doubtless the first and principal pauper, and the most worthy of assistance. We may extend this principle even to the most common cases, and safely assert that to supply a part of the current expenses of the state from the revenues of the church, and thus take so much from the weight of the people's burden, is really giving a part of those revenues to the poor, according to their original destination. But it is really contrary to religion and the intentions of the founders to waste in pomp, luxury, and epicurism, those revenues that ought to be consecrated to the relief of the poor.29

§ 153. 8. Excommunication of men in office.

Not satisfied, however, with rendering themselves independent, the ecclesiastics undertook to bring mankind under their dominion; and indeed they had reason to despise the stupid mortals who suffered them to proceed in their plan. Excommunication was a formidable weapon among ignorant and superstitious men, who neither knew how to keep it within its proper bounds, nor to distinguish between the use and the abuse of it. Hence arose disorders which have prevailed in some protestant countries. Churchmen have presumed, by their own authority alone, to excommunicate men in high employments, magistrates whose functions were daily useful to society — and have boldly asserted that those officers of the state, being struck with the thunders of the church, could no longer discharge the duties of their posts. What a perversion of order and reason! What! shall not a nation be allowed to intrust its affairs, its happiness, its repose and safety, to the hands of those whom it deems the most skilful and the most worthy of that trust? Shall the power of a churchman, whenever he pleases, deprive the state of its wisest conductors, of its firmest supports, and rob the prince of his most faithful servants? So absurd a pretension has been condemned by princes, and even by prelates, respectable for their character and judgment. We read in the 171st letter of Ives de Chartres, to the Archbishop of Sens, that the royal capitularies (conformably to the thirteenth canon of the twelfth council of Toledo, held in the year 681) enjoined the priests to admit to their conversation all those whom the king's majesty had received into favour or entertained at his table, though they had been excommunicated by them, or by others, in order that the church might not appear to reject or condemn those whom the king was pleased to employ in his service.29

§ 154. 9. And of sovereigns themselves

The excommunications pronounced against the sovereigns themselves, and accompanied with the absolution of their subjects from their oaths of allegiance, put the finishing stroke to this enormous abuse; and it is almost incredible that nations should have suffered such odious procedures. We have slightly touched on this subject in §§ 145 and 346. The thirteenth century gives striking instances of it. Otho IV. for endeavouring to oblige several provinces of Italy to submit to the laws of the empire, was excommunicated and deprived of the empire by Innocent III. and his subjects absolved from their oath of allegiance. Finally, this unfortunate emperor, being abandoned by the princes, was obliged to resign the crown to Frederic II. John, king of England, endeavouring to maintain the rights of his kingdom in the election of an archbishop of Canterbury, found himself exposed to the audacious enterprises of the same pope. Innocent excommunicated the king — laid the whole kingdom under an interdict — had the presumption to declare John unworthy of the throne, and to absolve his subjects from their oath of fidelity; he stirred up the clergy against him — excited his subjects to rebel — solicited the king of France to take up arms to dethrone him — publishing, at the same time, a crusade against him, as he would have done against the Saracens. The king of England at first appeared determined to defend himself with vigour: but soon losing courage, he suffered himself to be brought to such an excess of infamy, as to resign his kingdoms into the hands of the pope's legate, to receive them back from him, and hold them as a fief of the church, on condition of paying tribute.30

The popes were not the only persons guilty of such enormities: there have also been councils who bore a part in them. That of Lyons, summoned by Innocent IV., in the year 1245, had the audacity to cite the emperor Frederic II. to appear before them in order to exculpate himself from the charges brought against him — threatening him with the thunders of the church if he failed to do it. That great prince did not give himself much trouble about so irregular a proceeding. He said — "that the pope aimed at rendering himself both a judge and a sovereign; but that, from all antiquity, the emperors themselves had called councils, where the popes and prelates rendered to them, as to their sovereigns, the respect and obedience that was their due."31 The emperor, however, thinking it necessary to yield a little to the superstition of the times, condescended to send ambassadors to the council, to defend his cause; but this did not prevent the pope from excommunicating him, and declaring him deprived of the crown. Frederic, like a man of a superior genius, laughed at the empty thunders of the Vatican, and proved himself able to preserve the crown in spite of the election of Henry, Landgrave of Thuringia, whom the ecclesiastical electors, and many bishops, had presumed to declare king of the Romans — but who obtained little more by that election, than the ridiculous title of king of the priests.

I should never have done, were I to accumulate examples; but those I have already quoted are but too many for the honour of humanity. It is an humiliating sight to behold the excess of folly to which superstition had reduced the nations of Europe in those unhappy times.32

§ 155. 10. The clergy drawing every thing to themselves, and disturbing the order of justice.

By means of the same spiritual arms, the clergy drew everything to themselves, usurped the authority of the tribunals, and disturbed the course of justice. They claimed a right to take cognisance of all causes on account of sin, of which (says Innocent III.33) every man of sense must know that the cognisance belongs to our ministry. In the year 1329, the prelates of France had the assurance to tell King Philip de Valois, that to prevent causes of any kind from being brought before the ecclesiastical courts, was depriving the church of all its rights, omnia ecclesiarum jura tollere.34 And accordingly, it was their aim to have to themselves the decision of all disputes. They boldly opposed the civil authority, and made themselves feared by proceeding in the way of excommunication. It even happened sometimes, that as dioceses were not always confined to the extent of the political territory, a bishop would summon foreigners before his tribunal, for causes purely civil, and take upon him to decide them, in manifest violation of the rights of nations. To such a height had the disorder arisen three or four centuries ago, that our wise ancestors thought themselves obliged to take serious measures to put a stop to it, and stipulated, in their treaties, that none of the confederates should be summoned before spiritual courts, for money debts, since every one ought to be contented with the ordinary modes of justice that were observed in the country35 We find in history, that the Swiss on many occasions repressed the encroachments of the bishops and their judges.

Over every affair of life they extended their authority, under pretence that conscience was concerned. They obliged new-married husbands to purchase permission to he with their wives the first three nights after marriage.36

§ 156. 11. Money drawn to Rome.

This burlesque invention leads us to remark another abuse, manifestly contrary to the rules of a wise policy, and to the duty a nation owes to herself; I mean the immense sums which bulls, dispensations, &c., annually drew to Rome, from all the countries in communion with her. How much might be said on the scandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavouring to gain too much, suffered irreparable losses.

§ 157. 12. Laws and customs contrary to the welfare of states.

Finally, that independent authority intrusted to ecclesiastics, who were often incapable of understanding the true maxims of government, or too careless to take the trouble of studying them, and whose minds were wholly occupied by a visionary fanatacism, by empty speculations, and notions of a chimerical and overstrained purity, — that authority, I say, produced under the pretence of sanctity, laws and customs that were pernicious to the state. Some of these we have noticed; but a very remarkable instance is mentioned by Grotius. "In the ancient Greek church," says he, "was long observed a canon, by which those who had killed an enemy in any war whatsoever were excommunicated for three years:"37 a fine reward decreed for the heroes who defended their country, instead of the crowns and triumphs with which pagan Rome had been accustomed to honour them! Pagan Rome became mistress of the world; she adorned her bravest warriors with crowns. The empire, having embraced Christianity, soon became a prey to barbarians; her subjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themselves pursuing the path to heaven, and actually found themselves in the high road to riches and greatness.


1. The former assassinated Henry III. of France; the latter murdered his successor, Henry IV.

(52) With respect to these in England, and punishments for the violation, see 4 Bla. Com. 41 to 66. Blasphemy, or a libel, stating our Saviour to have been an imposter, and a murderer in principle, and a fanatic, is an indictable misdemeanor at common law. Rex v. Waddington, 1 Barn. & Cress. 26. And as to modern regulation, see 4 Bla. Com. 443. —

2. The Duke de Sully; see his Memoirs digested by M. de l'Ecluse, vol. v. pp. 135, 136.

3. Decorum injuriae diis curae. — Tacit. Ann. book i. c. 73.

4. Qui secus faxit, Deus ipse vindex erit. ... Qui non paruerit, capitale esto. — De Legib. lib. ii.

5. Quas (religiones) non metu, sed ea conjunctione quae est homini cum Deo, conservandas puto. Cicero de Legib. lib. i. What a fine lesson does this pagan philosopher give to Christians!

(53) See the modern enactments, 4 Bla. Com. 440, 443; Id. 52, 53, in the notes. — C.

6. When the chief part of the people in the principality of Neufchatel and Vallangin embraced the reformed religion in the sixteenth century Joan of Hochberg, their sovereign, continued to live in the Roman Catholic faith, and nevertheless still retained all her rights. The state counsel enacted ecclesiastical laws and constitutions similar to those of the reformed churches in Switzerland, and the princess gave them her sanction.

7. History of New France, books v. vi. vii.

8. See the Theodosian Code.

9. In England under Henry VIII.

10. Henry III. and Henry IV. assassinated by fanatics, who thought they were serving God and the church by slabbing their king.

11. Though Henry IV. relumed to the Romish religion, a great number of Catholics did not dare to acknowledge him until he had received the pope's absolution.

12. Many kings of France in the civil wars on account of religion.

13. Turretin. Hist. Ecclesiast. Compendium. p. 182, Where may also be seen the resolute answer of the king of France.

14. Extravag. Commun. lib. i. tit De Majoritate & Obedientia.

15. Gregory VII. endeavoured to render almost all the states of Europe tributary to him. He maintained that Hungary, Dalmatia, Russia, Spain, and Corsica, were absolutely his property, as successor to St. Peter, or were feudatory dependencies of the holy see. Greg. Epist. Concil. vol. vi. Edit, Harduin. — He summoned the emperor Henry IV. to appear before him, and make his defence against the accusations of some of his subjects: and, on the emperor's non-compliance, he deposed him. In short, here are the expressions he made use of in addressing the council assembled at Rome on the occasion: "Agite nunc, quæso, patres et principes sanctissimi, ut omnis mundus intelligat et cognoscat, quia si potestis in cœlo ligare et solvere, potestis in terra imperia, regna, principatus, ducatus, marchias, comitatus, et omnium hominum possessiones, pro meritis tollere unicique et concedere: Natal, Ales. Dissert. Hist. Eccl., s. xi. and xii. p. 384. The canon law boldly decides that the regal power is subordinate to the priesthood, "Imperium non præest saccerdotio, sed subest, et ei obedire tenetur." Rubric. ch. vi. De Major, et Obed. "Et est multum allegabile," is the complaisant remark of the writer of the article.

16. History of the Revolutions in Sweden.

17. Vogel's Historical and Political Treatise on the Alliances between France and the Thirteen Cantons, pp. 33 and 36.

18. We may see, in the letters of Cardinal d'Ossat, what difficulties, what opposition, what long delays. Henry IV. had to encounter, when he wished to confer the archbishopric of Sens on Renauld de Baune, archbishop of Bourges, who had saved France, by receiving that great prince into the Roman Catholic church.

19. This reflection has no relation to the religious houses in which literature is cultivated. Establishments that afford to learned men a peaceful retreat, and that leisure and tranquility required in deep scientific research, are always laudable, and may become very useful to the state.

20. The Papia-Poppæn law.

21. In the Theodosian Code.

22. The president de Montesquieu, in his Spirit of Laws.

23. Tantum sacerdos præstat regi, quantum homo bestiæ. Stanislaus Orichovius. — Vid; Tribbechov. Exerc. 1, ad Baron. Annal Sect 2, et Thomas Nat. ad. Lancell.

24. The congregation of inmunities has decided that the cognisance of causes against ecclesiastics, even for the crime of high treason, exclusively belongs to the spiritual court: — "Cognitio causæ contra ecclesiasticos, etiam pro delicto læsæ majestatis, feri debet a judice ecclesiastico." RICCI Synops. Decret. et Resol. S. Congreg. Immunit. p. 105. — A constitution of pope Urban VI. pronounces those sovereigns or magistrates guilty of sacrilege, who shall banish an ecclesiastic from their territories, and declares them to have ipso facto incurred the sentence of excommunication. Cap. II. De Fora. Compet in VII. To this immunity may be added the indulgence shown by the ecclesiastical tribunals to the clergy, on whom they never inflicted any but slight punishments, even for the most atrocious crimes. The dreadful disorders that arose from this cause, at length produced their own remedy in France, where the clergy were at length subjected to the temporal jurisdiction for all transgressions that are injurious to society. See Papon Arrets Notables, book i. tit. v. act 34.

25. Indecorum est laicos homines viros ecclesiasticos judicare. Can. in nona actione 22, xvi. q. 7.

26. See the Statement of Facts on the System of Independence of Bishops.

27. In the year 1725, a parish priest, of the canton of Lucerne, having refused to appear before the supreme council, was, for his contumacy, banished from the canton. Hereupon his diocesan, the bishop of Constance, had the assurance to write to the council that they had infringed the ecclesiastical immunities — that "it is unlawful to subject the ministers of God to the decisions of the temporal power." In these pretensions he was sanctioned by the approbation of the pope's nuncio and the court of Rome. But the council of Lucerne firmly supported the rights of sovereignty, and, without engaging with the bishop in a controversy which would have been derogatory to their dignity, answered him — "Your lordship quotes various passages from the writings of the fathers, which we, on our side, might also quote in our own favour, if it were necessary, or if there was question of deciding the contest by dint of quotation. But let your lordship rest assured that we have a right to summon before us a priest, our natural subject, who encroaches on our prerogatives — to point out to him his error — to exhort him to a reform of his conduct — and, in consequence of his obstinate disobedience, after repeated citations, to banish him from our dominions. We have not the least doubt that this right belongs to us; and we are determined to defend it. And indeed it ought not to be proposed to any sovereign to appear as party in a contest with a refractory subject like him — to refer the cause to the decision of a third party, whoever he be — and run the risk of being condemned to tolerate in the state a person of such character, with what dignity soever he might be invested." &c. The bishop of Constance had proceeded so far as to assert in his letter to the canton, dated December 18th, 1725, that "churchmen, as soon as they have received holy orders, ceased to be natural subjects, and are thus released from the bondage in which they lived before." Memorial on the Dispute between the Pope and the Canton of Lucerne, p. 65.

28. Revolutions of Portugal.

29. See Letters on the Pretensions of the Clergy.

30. Matthew Paris. — turretin. Compend. Hist. Eccles. Secul. xiii.

31. Heiss's History of the Empire, book ii., chap. svi.

32. Sovereigns were sometimes found, who, without considering future consequences, favoured the papal encroachments when they were likely to prove advantageous to their own interests. Thus, Louis VIII., king of France, wishing to invade the territories of the Count of Toulouse, under pretence of making war on the Albigenses, requested of the pope, among other things, "that he would Issue a bull declaring that the two Raymonds, father and son, together with all their adherents, associates, and allies, had been and were deprived of all their possessions." VELLY'S Hist. of France, vol. iv. p. 33. Of a similar nature to the preceding is the following remarkable fact: — Pope Martin IV. excommunicated Peter, king of Arragon, declared that he had forfeited his kingdom, all his lands, and even the regal dignity, and pronounced his subjects absolved from their oath of allegiance. He even excommunicated all who should acknowledge him as king, or perform towards him any of the duties of a subject. He then offered Arragon and Catalonia to the Count de Valois, second son of Philip the Bold, on condition that he and his successors should acknowledge themselves vassals of the holy see, take an oath of fealty to the pope, and pay him a yearly tribute. The king of France assembled the barons and prelates of his kingdom, to deliberate on the pope's offer, and they advised him to accept of it. "Strange blindness of kings and their counsellors!" exclaims, with good reason, a modern historian; "they did not perceive, that, by thus accepting kingdoms from the hands of the pope, they strengthened and established his pretensions to the right of deposing themselves." VELLY'S History of France, vol. vi. p. 190.

33. In cap. Novit. de Judicis.

34. See Leibnitii Codex, Juris Gent. Diplomat. Dipl. LXVII. § 9.

35. Ibid. Alliance of Zurich with the cantons of Uri, Schweitz, and Underwald, dated May 1, 1351, § 7.

36. See A Regulation of Parliament in an arret of March 19, 1409. Spirit of Laws. These (says Montesquieu) were the very best nights they could pitch upon; they would have made no great profit of any other.

37. De Jure Belli et Pacis. lib. ii. cap. xxiv. He quotes Basil ad Amphiloch, x. 13. Zonarcas in Niceph. Phoc. vol. iii.


The LAW OF NATIONS - BOOK I.

CHAP. XIII.

OF JUSTICE AND POLITY.

§ 158. A nation ought to make justice reign.

NEXT to the care of religion, one of the principal duties of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burdensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§ 15), that men have bound themselves by the engagements of society, and consented to divest themselves, in its favour, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with certainly. The nation would therefore neglect her duty to herself, and deceive the individuals, if she did not seriously endeavour to make the strictest justice prevail. This attention she owes to her own happiness, repose, and prosperity. Confusion, disorder, and despondency will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes; without this, the civil virtues will become extinguished, and the society weakened.

§ 159. To establish good laws.

There are two methods of making justice flourish — good laws, and the attention of the superiors to see them executed. In treating of the constitution of a state (Chap. III.), we have already shown that a nation ought to establish just and wise laws, and have also pointed out the reasons why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights, without being misled by self-deception. Sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and, since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law.1 It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These, again are the civil laws.

§ 160. To enforce them.

The best laws are useless if they be not observed. The nation ought then to take pains to support them, and to cause them to be respected and punctually executed: with this view she cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity.

§ 161. Functions and duties of the prince in this respect.

We have already observed (§ 41) that the sovereign, who represents a nation and is invested with its authority, is also charged with its duties. An attention to make justice flourish in the state must then be one of the principal functions of the prince; and nothing can be more worthy of the sovereign majesty. The emperor Justinian thus begins his book of the Institutes: Imperitoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus, et bellorum et pacis, recte possit gubernari. The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either reserve the legislative power to itself, or intrust it to a select body, — it has also a right, if it thinks proper, to establish a supreme tribunal to judge of all disputes, independently of the prince. But the conductor of the state must naturally have a considerable share in legislation, and it may even be entirely intrusted to him. In this last case, it is he who must establish salutary laws, dictated by wisdom and equity: but in all cases, he should be the guardian of the law; he should watch over those who are invested with authority, and confine each individual within the bounds of duty.

§ 162. How he is to dispense justice.

The executive power naturally belongs to the sovereign, — to every conductor of a people: he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it. When the laws are established, it is the prince's province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the judge of his people. We have seen the chiefs of some small states perform these functions themselves: but this custom becomes inconvenient, and even impossible in a great kingdom.

§ 163. He ought to appoint enlightened and upright judges.

The best and safest method of distributing justice is by establishing judges, distinguished by their integrity and knowledge, to take cognisance of all the disputes that may arise between the citizens. It is impossible for the prince to take upon himself this painful task: he cannot spare sufficient time either for the thorough investigation of all causes, or even for the acquisition of the knowledge necessary to decide them. As the sovereign cannot personally discharge all the functions of government, he should, with a just discernment, reserve to himself such as he can successfully perform, and are of most importance, — intrusting the others to officers and magistrates who shall execute them under his authority. There is no inconvenience in trusting the decision of a lawsuit to a body of prudent, honest, and enlightened men: — on the contrary it is the best mode the prince can possibly adopt; and he fully acquits himself of the duty he owes to his people in this particular, when he gives them judges adorned with all the qualities suitable to ministers of justice: he has then nothing more to do but to watch over their conduct, in order that they may not neglect their duty.

§ 164. The ordinary courts should determine causes relating to the revenue.

The establishment of courts of justice is particularly necessary for the decision of all fiscal causes, — that is to say, all the disputes that may arise between the subjects on the one hand, and, on the other, the persons who exert the profitable prerogatives of the prince. It would be very unbecoming, and highly improper for a prince, to take upon him to give judgment in his own cause: — he cannot be too much on his guard against the illusions of interest and self-love; and even though he were capable of resisting their influence, still he ought not to expose his character to the rash judgments of the multitude. These important reasons ought even to prevent his submitting the decision of causes in which he is concerned, to the ministers and counsellors particularly attached to his person. In all well-regulated states, in countries that are really states, and not the dominions of a despot, the ordinary tribunals decide all causes in which the sovereign is a party, with as much freedom as those between private persons.

§ 165. There ought to be established supreme courts of justice wherein causes should be finally determined.

The end of all trials at law is justly to determine the disputes that arise between the citizens. If, therefore, suits are prosecuted before an inferior judge, who examines all the circumstances and proofs relating to them, it is very proper, that, for the greater safety, the party condemned should be allowed to appeal to a superior tribunal, where the sentence of the former judge may be examined, and reversed, if it appear to be ill-founded. But it is necessary that this supreme tribunal should have the authority of pronouncing a definitive sentence without appeal: otherwise the whole proceeding will be vain, and the dispute can never be determined.

The custom of having recourse to the prince himself, by laying a complaint at the foot of the throne, when the cause has been finally determined by a supreme court, appears to be subject to very great inconveniences. It is more easy to deceive the prince by specious reasons, than a number of magistrates well skilled in the knowledge of the laws; and experience too plainly shows what powerful resources are derived from favour and intrigue in the courts of kings.

If this practice be authorized by the laws of the state, the prince ought always to fear that these complaints are only formed with a view of protracting a suit, and procrastinating a just condemnation. A just and wise sovereign will not admit them without great caution; and if he reverses the sentence that is complained of, he ought not to try the cause himself, but submit it to the examination of another tribunal, as is the practice in France. The ruinous length of these proceedings authorizes us to say that it is more convenient and advantageous to the state, to establish a sovereign tribunal, whose definitive decrees should not be subject to a reversal even by the prince himself. It is sufficient for the security of justice that the sovereign keep a watchful eye over the judges and magistrates, in the same manner as he is bound to watch all the other officers in the state, — and that he have power to call to an account and to punish such as are guilty of prevarication.

§ 166. The prince ought to preserve the forms of justice.

When once this sovereign tribunal is established, the prince cannot meddle with its decrees; and, in general, he is absolutely obliged to preserve and maintain the forms of justice. Every attempt to violate them is an assumption of arbitrary power, to which it cannot be presumed that any nation could ever have intended to subject itself.

When those forms are defective, it is the business of the legislator to reform them. This being done or procured in a manner agreeable to the fundamental laws, will be one of the most salutary benefits the sovereign can bestow upon his people. To preserve the citizens from the danger of ruining themselves in defending their rights, — to repress and destroy that monster, chicanery, — will be an action more glorious in the eyes of the wise man, than all the exploits of a conqueror.

§ 167. The prince ought to support the authority of the judges.

Justice is administered in the name of the sovereign; the prince relies on the judgment of the courts, and, with good reason, looks upon their decisions as sound law and justice. His part in this branch of the government is then to maintain the authority of the judges, and to cause their sentences to be executed; without which they would be vain and delusive; for justice would not be rendered to the citizens.

§ 168. Of distributive justice. The distribution of employments and rewards.

There is another kind of justice named attributive or distributive, which in general consists in treating every one according to his deserts. This virtue ought to regulate the distribution of public employments, honours, and rewards in a state. It is, in the first place, a duty the nation owes to herself, to encourage good citizens, to excite every one to virtue by honours and rewards, and to intrust with employments such persons only as are capable of properly discharging them. In the next place, it is a duty the nation owes to individuals, to show herself duly attentive to reward and honour merit. Although a sovereign has the power of distributing his favours and employments to whomsoever he pleases, and nobody has a perfect right to any post or dignity, — yet a man who by intense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation. There is hardly any fault that in the course of time can become more prejudicial to a state: it introduces into it a general relaxation; and its public affairs, being managed by incompetent hands, cannot fail to be attended with ill-success. A powerful state may support itself for some time by its own weight; but at length it falls into decay; and this is perhaps one of the principal causes of the revolutions observable in great empires. The sovereign is attentive to the choice of those he employs, while he feels himself obliged to watch over his own safety, and to be on his guard: but when once he thinks himself elevated to such a pitch of greatness and power as leaves him nothing to fear, he follows his own caprice, and all public offices are distributed by favour.

§ 169. Punishment of transgressors.

The punishment of transgressors commonly belongs to distributive justice, of which it is really a breach; since good order requires that malefactors should be made to suffer the punishments they have deserved. But, if we would clearly establish this on its true foundations, we must recur to first principles. The right of punishing, which in a state of nature belongs to each individual, is founded on the right of personal safety. Every man has a right to preserve himself from injury, and by force to provide for his own security against those who unjustly attack him. For this purpose he may, when injured, inflict a punishment on the aggressor, as well with the view of putting it out of his power to injure him for the future, or of reforming him, as of restraining, by his example, all those who might be tempted to imitate him. Now, when men unite in society, — as the society is thenceforward charged with the duty of providing for the safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large. And as it is a moral person, capable also of being injured, it has a right to provide for its own safety, by punishing those who trespass against it; — that is to say, it has a right to punish public delinquents. Hence arises the right of the sword, which belongs to a nation, or to its conductor. When the society use it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice. Two things are to be considered in this part of government, — the laws, and their execution.

§ 170. Criminal laws

It would be dangerous to leave the punishment of transgressors entirely to the discretion of those who are invested with authority. The passions might interfere in a business which ought to be regulated only by justice and wisdom. The punishment pre-ordained for an evil action, lays a more effectual restraint on the wicked than a vague fear, in which they may deceive themselves. In short, the people, who are commonly moved at the sight of a suffering wretch, are better convinced of the justice of his punishment, when it is inflicted by the laws themselves. Every well-governed state ought then to have its laws for the punishment of criminals. It belongs to the legislative power, whatever that be, to establish them with justice and wisdom. But this is not a proper place for giving a general theory of them: we shall therefore only say that each nation ought, in this as in every other instance, to choose such laws as may best suit her peculiar circumstances.

§ 171. Degree of punishment.

We shall only make one observation, which is connected with the subject in hand, and relates to the degree of punishment. From the foundation even of the right of punishing, and from the lawful end of inflicting penalties, arises the necessity of keeping them within just bounds. Since they are designed to procure the safety of the state and of the citizens, they ought never to be extended beyond what that safety requires. To say that any punishment is just since the transgressor knew before-hand the penalty he was about to incur, is using a barbarous language, repugnant to humanity, and to the law of nature, which forbids our doing any ill to others, unless they lay us under the necessity of inflicting it in our own defence and for our own security. Whenever then a particular crime is not much to be feared in society, as when the opportunities of committing it are very rare, or when the subjects are not inclined to it, too rigorous punishments ought not to be used to suppress it. Attention ought also to be paid to the nature of the crime; and the punishment should be proportioned to the degree of injury done to the public tranquillity and the safety of society, and the wickedness it supposes in the criminal.

These maxims are not only dictated by justice and equity, but also as forcibly recommended by prudence and the art of government. Experience shows us that the imagination becomes familiarized to objects which are frequently presented to it. If, therefore, terrible punishments are multiplied, the people will become daily less affected by them, and at length contract, like the Japanese, a savage and ferocious character: — these bloody spectacles will then no longer produce the effect designed; for they will cease to terrify the wicked. It is with these examples as with honours: — a prince who multiplies titles and distinctions to excess, soon depreciates them, and makes an injudicious use of one of the most powerful and convenient springs of government. When we recollect the practice of the ancient Romans with respect to criminals — when we reflect on their scrupulous attention to spare the blood of the citizens, — we cannot fail to be struck at seeing with how little ceremony it is now-a-days shed in the generality of states. Was then the Roman republic but ill governed? Docs better order and greater security reign among us? — It is not so much the cruelty of the punishments, as a strict punctuality in enforcing the penal code, that keeps mankind within the bounds of duty: and if simple robbery is reserved to check the hand of the murderer?

§ 172. Execution of the laws.

The execution of the laws belongs to the conductor of the state: he is intrusted with the care of it, and is indispensably obliged to discharge it with wisdom. The prince then is to see that the criminal laws be put in execution; but he is not to attempt in his own person to try the guilty. Besides the reasons we have already alleged in treating of civil causes, and which are of still greater weight in regard to those of a criminal nature — to appear in the character of a judge pronouncing sentence on a wretched criminal, would ill become the majesty of the sovereign, who ought in every thing to appear as the father of his people. It is a very wise maxim commonly received in France, that the prince ought to reserve to himself all matters of favour, and leave it to the magistrates to execute the rigour of justice. But then justice ought to be exercised in his name, and under his authority. A good prince will keep a watchful eye over the conduct of the magistrates; he will oblige them to observe scrupulously the established forms, and will himself take care never to break through them. Every sovereign who neglects or violates the forms of justice in the prosecution of criminals, makes large strides towards tyranny; and the liberty of the citizens is at an end when once they cease to be certain that they cannot be condemned, except in pursuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accused party to commissioners chosen at the pleasure of the court, was the tyrannical invention of some ministers who abused the authority of their master. By this irregular and odious procedure, a famous minister always succeeded in destroying his enemies. A good prince will never give his consent to such a proceeding, if he has sufficient discernment to foresee the dreadful abuse his ministers may make of it. If the prince ought not to pass sentence himself — for the same reason, he ought not to aggravate the sentence passed by the judges.

§ 173. Right of pardoning

The very nature of government requires that the executor of the laws should have the power of dispensing with them when this may be done without injury to any person, and in certain particular cases where the welfare of the state requires an exception. Hence the right of granting pardons is one of the attributes of sovereignly. But, in his whole conduct, in his severity as well as his mercy, the sovereign ought to have no other object in view than the greater advantage of society. A wise prince knows how to reconcile justice with clemency — the care of the public safety with that pity which is due to the unfortunate.

§ 174. Internal police.

The internal police consists in the attention of the prince and magistrates to preserve every thing in order. Wise regulations ought to prescribe whatever will best contribute to the public safety, utility, and convenience; and those who are invested with authority cannot be too attentive to enforce them. By a wise police, the sovereign accustoms the people to order and obedience, and preserves peace, tranquillity, and concord among the citizens. The magistrates of Holland are said to possess extraordinary talents in this respect: — a better police prevails in their cities, and even their establishments in the Indies, than in any other places in the known world.

§ 175. Duel, or single combat.

Laws and the authority of the magistrates having been substituted in the room of private war, the conductors of a nation ought not to suffer individuals to attempt to do themselves justice, when they can have recourse to the magistrates. Duelling — that species of combat, in which the parties engage on account of a private quarrel — is a manifest disorder repugnant to the ends of civil society. This frenzy was unknown to the ancient Greeks and Romans, who raised to such a height the glory of their arms: we received it from barbarous nations who knew no other law but the sword. Louis XIV. deserves the greatest praise for his endeavours to abolish this savage custom. (54)

§ 176. Means of putting a stop to this disorder.

But why was not that prince made sensible that the most severe punishments were incapable of curing the rage for duelling? They did not reach the source of the evil; and since a ridiculous prejudice had persuaded all the nobility and gentlemen of the army, that a man who wears a sword is bound in honour to avenge with his own hand the least injury he has received; this is the principle on which it is proper to proceed. We must destroy this prejudice, or restrain it by a motive of the same nature. While a nobleman, by obeying the law, shall be regarded by his equals as a coward and as a man dishonoured — while an officer in the same case shall be forced to quit the service — can you hinder his fighting by threatening him with death? On the contrary, he will place a part of his bravery in doubly exposing his life in order to wash away the affront. And, certainly, while the prejudice subsists, while a nobleman or an officer cannot act in opposition to it, without embittering the rest of his life, I do not know whether we can justly punish him who is forced to submit to his tyranny, or whether he be very guilty with respect of morality. That worldly honour, be it as false and chimerical as you please, is to him a substantial and necessary possession, since without it he can neither live with his equals, nor exercise a profession that is often his only resource. When, therefore, any insolent fellow would unjustly ravish from him that chimera so esteemed and so necessary, why may he not defend it as he would his life and property against a robber? As the state does not permit an individual to pursue with arms in his hand the usurper of his property, because he may obtain justice from the magistrate — so, if the sovereign will not allow him to draw his sword against the man from whom he has received an insult, he ought necessarily to take such measures that the patience and obedience of the citizen who has been insulted shall not prove prejudicial to him. Society cannot deprive man of his natural right of making war against an aggressor, without furnishing him with some other means of securing himself from the evil his enemy would do him. On all those occasions where the public authority cannot lend us its assistance, we resume our original and natural right of self-defence. Thus a traveller may, without hesitation, kill the robber who attacks him on the highway; because it would, at that moment, be in vain for him to implore the protection of the laws and of the magistrate. Thus a chaste virgin would be praised for taking away the life of a brutal ravisher who attempted to force her to his desires.

Till men have got rid of this Gothic idea, that honour obliges them, even in contempt of the laws, to avenge their personal injuries with their own hands, the most effectual method of putting a stop to the effects of this prejudice would perhaps be to make a total distinction between the offended and the aggressor — to pardon the former without difficulty, when it appears that his honour has been really attacked — and to exercise justice without mercy on the party who has committed the outrage. And as to those who draw the sword for trifles and punctilios, for little piques, or railleries in which honour is not concerned, I would have them severely punished. By this means a restraint would be put on those peevish and insolent folks who often reduce even the moderate men to a necessity of chastising them. Every one would be on his guard, to avoid being considered as the aggressor; and with a view to gain the ad vantage of engaging in duel (if unavoidable) without incurring the penalties of the law, both parties would curb their passions; by which means the quarrel would fall of itself, and be attended with no consequences. It frequently happens that a bully is at bottom a coward; he gives himself haughty airs, and offers insult, in hopes that the rigour of the law will oblige people to put up with his insolence. And what is the consequence? — A man of spirit will run every risk, rather than submit to be insulted: the aggressor dares not recede: and a combat ensues, which would not have taken place, if the latter could have once imagined that there was nothing to prevent the other from chastising him for his presumption — the offended person being acquitted by the same law that condemns the aggressor.

To this first law, whose efficacy would, I doubt not, be soon proved by experience, it would be proper to add the following regulations: — 1. Since it is an established custom that the nobility and military men should appear armed, even in time of peace, care should be taken to enforce a rigid observance of the laws which allow the privilege of wearing swords to these two orders of men only. 2. It would be proper to establish a particular court, to determine, in a summary manner, all affairs of honour between persons of these two orders. The marshals' court in France is in possession of this power; and it might be invested with it in a more formal manner and to a greater extent. The governors of provinces and strong places, with their general officers — the colonels and captains of each regiment — might, in this particular, act as deputies to the marshals. These courts, each in his own department, should alone confer the right of wearing a sword. Every nobleman at sixteen or eighteen years of age, and every soldier at his entrance into the regiment, should be obliged to appear before the court to receive the sword. 3. On its being there delivered to him, he should be informed that it is intrusted to him only for the defence of his country; and care might be taken to inspire him with true ideas of honour. 4. It appears to me of great importance to establish, for different cases, punishments of a different nature. Whoever should so far forget himself, as, either by word or deed, to insult a man who wears a sword, might be degraded from the rank of nobility, deprived of the privilege of carrying arms, and subjected to corporal punishment — even the punishment of death, according to the grossness of the insult: and, as I before observed, no favour should be shown to the offender in case a duel was the consequence, while at the same time the other party should stand fully acquitted. Those who fight on slight occasions, I would not have condemned to death, unless in such cases where the author of the quarrel — he, I mean, who carried it so far as to draw his sword, or to give the challenge — has killed his adversary. People hope to escape punishment when it is too severe; and, besides, a capital punishment in such cases is not considered as infamous. But let them be ignominiously degraded from the rank of nobility and the use of arms, and forever deprived of the right of wearing a sword, without the least hope of pardon: this would be the most proper method to restrain men of spirit, provided that due care was taken to make a distinction between different offenders, according to the degree of the offence. As to persons below the rank of nobility, and who do not belong to the army, their quarrels should be left to the cognisance of the ordinary courts, which in case of bloodshed should punish the offenders according to the common laws against violence and murder. It should be the same with respect to any quarrel that might arise between a commoner and a man entitled to carry arms: it is the business of the ordinary magistrate to preserve older and peace between those two classes of men, who cannot have any points of honour to settle the one with the other. To protect the people against the violence of those who wear the sword, and to punish the former severely if they should dare to insult the latter, should further be, as it is at present, the business of the magistrate,

I am sanguine enough to believe that these regulations, and this method of proceeding, if strictly adhered to, would extirpate that monster, duelling, which the most severe laws have been unable to restrain. They go to the source of the evil, by preventing quarrels, and oppose a lively sensation of true and real honour to that false and punctilious honour which occasions the spilling of so much blood. It would be worthy a great monarch to make a trial of it: its success would immortalize his name: and by the bare attempt he would merit the love and gratitude of his people.


1. See a dissertation on this subject, in the Loisir Philosophique, p. 71.

(54) As to the legal view of the offence of duelling in England, see 6 East Rep. 260; 2 East Rep. 581; 2 Barn. & Ald. 462 and Burn's J. 266 ed. tit — "Duelling,"


The LAW OF NATIONS - BOOK I.

CHAP. XIV.

THE THIRD OBJECT OF A GOOD GOVERNMENT, —
TO FORTIFY ITSELF AGAINST EXTERNAL ATTACKS.

§ 177. A nation ought to fortify itself against external attacks.

WE have treated at large of what relates to the felicity of a nation: the subject is equally copious and complicated. Let us now proceed to a third division of the duties which a nation owes to itself, — a third object of good government. One of the ends of political society is to defend itself with its combined strength against all external insult or violence (§ 15). If the society is not in a condition to repulse an aggressor, it is very imperfect, — it is unequal to the principal object of its destination, and cannot long subsist. The nation ought to put itself in such a state as to be able to repel and humble an unjust enemy: this is an import duty, which the care of its own perfection, and even of its preservation, imposes both on the state and its conductor.

§ 178. National strength.

It is its strength alone that can enable a nation to repulse all aggressors, to secure its rights, and render itself everywhere respectable. It is called upon by every possible motive to neglect no circumstance that can tend to place it in this happy situation. The strength of a state consists in three things, — the number of citizens, their military virtues, and their riches. Under this last article we may comprehend fortresses, artillery, arms, horses, ammunition, and, in general, all that immense apparatus at present necessary in war, since they can all be procured with money.

§ 179. Increase of population. (55)

To increase the number of the citizens as far as it is possible or convenient, is then one of the first objects that claim the attentive care of the state or its conductor: and this will be successfully effected by complying with the obligation to procure the country a plenty of the necessaries of life, —; by enabling the people to support their families with the fruits of their labour, —; by giving proper directions that the poorer classes, and especially the husbandmen, be not harassed and oppressed by the levying of taxes, — by governing with mildness and in a manner which, instead of disgusting and dispersing the present subjects of the state, shall rather attract new ones, — and, finally, by encouraging marriage, after the example of the Romans. That nation, so attentive to every thing capable of increasing and supporting their power, made wise laws against celibacy (as we have already observed in § 149), and granted privileges and exemptions to married men, particularly to those who had numerous families: laws that were equally wise and just, since a citizen who rears subjects for the state has a right to expect more favour from it than the man who chooses to live for himself alone.1

Every thing tending to depopulate a country is a defect in a state not overstocked with inhabitants. We have already spoken of convents and the celibacy of priests. It is strange that establishments so directly repugnant to the duties of a man and citizen, as well as to the advantage and safety of society, should have found such favour, and that princes, instead of opposing them, as it was their duty to do, should have protected and enriched them. A system of policy, that dextrously took advantage of superstition to extend its own power, led princes and subjects astray, caused them to mistake their real duties, and blinded sovereigns even with respect to their own interest. Experience seems at length to have opened the eyes of nations and their conductors; the pope himself (let us mention it to the honour of Benedict XIV.) endeavors gradually to reform so palpable an abuse; by his orders, none of his dominions are any longer permitted to take the vow of celibacy before they are twenty-five years of age. That wise pontiff gives the sovereigns of his communion a salutary example; he invites them to attend at length to the safety of their states, — to narrow at least, if they cannot entirely close up, the avenues of that sink that drains their dominions. Take a view of Germany; and there, in countries which are in all other respects upon an equal fooling, you will see the protestant states twice as populous as the catholic ones. Compare the desert state of Spain with that of England, teeming with inhabitants: survey many fine provinces, even in France, destitute of hands to till the soil; and then tell me, whether the many thousands of both sexes, who are now locked up in convents, would not serve God and their country infinitely better by peopling those fertile plains with useful cultivators? It is true, indeed, that the catholic cantons of Switzerland are nevertheless very populous: but this is owing to a profound peace, and the nature of the government, which abundantly repair the losses occasioned by convents. Liberty is able to remedy the greatest evils; it is the soul of a state, and was with great justice called by the Romans alma Libertas.

§ 180. Valour.

A cowardly and undisciplined multitude are incapable of repulsing a warlike enemy: the strength of the state consists less in the number than the military virtues of its citizens. Valour, that heroic virtue which makes us undauntedly encounter danger in defence of our country, is the firmest support of the state: it renders it formidable to its enemies, and often even saves it the trouble of defending itself. A state whose reputation in this respect is once well established, will be seldom attacked, if it does not provoke other states by its enterprises. For above two centuries the Swiss have enjoyed a profound peace, while the din of arms resounded all around them, and the rest of Europe was desolated by the ravages of war. Nature gives the foundation of valour; but various causes may animate it, weaken it, and even destroy it, A nation ought then to seek after and cultivate a virtue so useful; and a prudent sovereign will take all possible measures to inspire his subjects with it: — his wisdom will point out to him the means. It is this generous flame that animates the French nobility: fired with a love of glory and of their country, they fly to battle, and cheerfully spill their blood in the field of honour. To what an extent would they not carry their conquests, if that kingdom were surrounded by nations less warlike! The Briton, generous and intrepid, resembles a lion in combat; and, in general, the nations of Europe surpass in bravery all the other people upon earth.

§ 181. Other military virtues.

But valour alone is not always successful in war: constant success can only be obtained by an assemblage of all the military virtues. History shows us the importance of ability in the commanders, of military discipline, frugality, bodily strength, dexterity, and being inured to fatigue and labour. These are so many distinct branches which a nation ought carefully to cultivate. It was the assemblage of all these that raised so high the glory of the Romans, and rendered them the masters of the world. It were a mistake to suppose that valour alone produced those illustrious exploits of the ancient Swiss — the victories of Morgarten, Sempach, Laupen, Morat, and many others. The Swiss not only fought with intrepidity; they studed the art of war, — they inured themselves to its toils, — they accustomed themselves to the practice of all its manœuvres, — and their very love of liberty made them submit to a discipline which could alone secure to them that treasure, and save their country. Their troops were no loss celebrated for their discipline than their bravery. Mezeray, after having given an account of the behaviour of the Swiss at the battle of Dreux, adds these remarkable words; "in the opinion of all the officers of both sides who were present, the Swiss, in that battle, under every trial, against infantry and cavalry, against French and against Germans, gained the palm for military discipline, and acquired the reputation of being the best infantry in the world."3

§ 182. Riches.

Finally, the wealth of a nation constitutes a considerable part of its power, especially in modern times, when war requires such immense expenses. It is not simply in the revenues of the sovereign, or the public treasure, that the riches of a nation consist: its opulence is also rated from the wealth of individuals. We commonly call a nation rich, when it contains a great number of citizens in easy and affluent circumstances. The wealth of private persons really increases the strength of the nation; since they are capable of contributing large sums towards supplying the necessities of the state, and that, in a case of extremity, the sovereign may even employ all the riches of his subjects in the defence, and for the safety of the state, in virtue of the supreme command with which he is invested, as we shall hereafter show. The nation, then, ought to endeavour to acquire those public and private riches that are of such use to it: and this is a new reason for encouraging a commerce with other nations, which is the source from whence they flow, — and a new motive for the sovereign to keep a watchful eye over the different branches of foreign trade carried on by his subjects, in order that he may preserve and protect the profitable branches, and cut off those that occasion the exportation of gold and silver.

§ 183. Public revenues and taxes.

It is requisite that the state should possess an income proportionate to its necessary expenditures. That income may be supplied by various means, — by lands reserved for that purpose, by contributions, taxes of different kinds, &c. — but of this subject we shall treat in another place.

§ 184. The nation ought not to increase its power by illegal means.

We have here summed up the principal ingredients that constitute that strength which a nation ought to augment and improve. Can it be necessary to add the observation, that this desirable object is not to be pursued by any other methods than such as are just and innocent? A laudable end is not sufficient to sanctify the means; for these ought to be in their own nature lawful. The law of nature cannot contradict itself: if it forbids an action as unjust or dishonest in its own nature, it can never permit it for any purpose whatever. And therefore in those cases where that object, in itself so valuable and so praiseworthy, cannot be attained without employing unlawful means, it ought to be considered as unattainable, and consequently be relinquished. Thus, we shall show, in treating of the just causes of war, that a nation is not allowed to attack another with a view to aggrandize itself by subduing and giving law to the latter. This is just the same as if a private person should attempt to enrich himself by seizing his neighbour's property.

§ 185. Power is but relative.

The power of a nation is relative, and ought to be measured by that of its neighbours, or of all the nations from whom it has any thing to fear. The state is sufficiently powerful when it is capable of causing itself to be respected, and of repelling whoever would attack it. It may be placed in this happy situation, either by keeping up its own strength equal or even superior to that of its neighbours, or by preventing their rising to a predominant and formidable power. But we can not show here in what cases and by what means a state may justly set bounds to the power of another. It is necessary, first, to explain the duties of a nation towards others, in order to combine them afterwards with its duties towards itself. For the present, we shall only observe, that a nation, while it obeys the dictates of prudence and wise policy in this instance, ought never to lose sight of the maxims of justice.


(55) This subject, and the necessity for endeavouring to discourage the increase of population, have, in recent years, occasioned the publication of numerous works. See them commented upon, 1 Chitty's Commercial Law, 1, 2. &c.

1. It is impossible to suppress the emotions of indignation that arise on reading what some of the fathers of the church have written against marriage, and in favour of celibacy. "Videtur esse matrimonii et stupri differentia, (says Tertulian): sed utrobique est communicatio.2 Ergo, inquis, et primas nuptios damnas? Nec immerito, quoniam et ipsæ constant ex eo quod est stuprum." EXHORT. CASTIT. And thus Jerome; "Hanc tantum esse differentiam inter uxorem et scortum, quod tolerabiliu, sit uni esse prostitutam quam pluribus."

2. Contaminatio. —; EDIT.

3. History of France, vol. ii. p. 668.


The LAW OF NATIONS - BOOK I.

CHAP. XV.

OF THE GLORY OF A NATION.

§ 186. Advantages of glory.

THE glory of a nation is intimately connected with its power, and indeed forms a considerable part of it. It is this brilliant advantage that procures it the esteem of other nations, and renders it respectable to its neighbours. A nation whose reputation is well established — especially one whose glory is illustrious — is courted by all sovereigns; they desire its friendship, and are afraid of offending it. Its friends, and those who wish to become so, favour its enterprises; and those who envy its prosperity are afraid to show their ill-will.

§ 187. Duty of the nation.

It is, then, of great advantage to a nation to establish its reputation and glory; hence, this becomes one of the most important of the duties it owes to itself. True glory consists in the favourable opinion of men of wisdom and discernment; it is acquired by the virtues or good qualities of the head and the heart, and by great actions, which are the fruits of those virtues. A nation may have a two-fold claim to it; — first, by what it does in its national character, by the conduct of those who have the administration of its affairs, and are invested with its authority and government; and, secondly, by the merit of the individuals of whom the nation is composed.

§ 188. Duty of the prince.

A prince, a sovereign of whatever kind, being bound to exert every effort for the good of the nation, is doubtless obliged to extend its glory as far as lies in his power. We have seen that his duty is to labour after the perfection of the state, and of the people who are subject to him; by that means he will make them merit a good reputation and glory. He ought always to have this object in view, in every thing he undertakes, and in the use he makes of his power. Let him, in all his actions, display justice, moderation, and greatness of soul, and he will thus acquire for himself and his people a name respected by the universe, and not less useful than glorious. The glory of Henry IV, saved France. In the deplorable state in which he found affairs, his virtues gave animation to the loyal part of his subjects, and encouraged foreign nations to lend him their assistance, and to enter into an alliance with him against the ambitious Spaniards. In his circumstances, a weak prince of little estimation would have been abandoned by all the world; people would have been afraid of being involved in his ruin.

Besides the virtues which constitute the glory of princes as well as of private persons, there is a dignity and decorum that particularly belong to the supreme rank, and which a sovereign ought to observe with the greatest care. He cannot neglect them without degrading himself, and casting a stain upon the state. Every thing that emanates from the throne ought to bear the character of purity, nobleness, and greatness. What an idea do we conceive of a people, when we see their sovereign display, in his public acts, a meanness of sentiment by which a private person would think himself disgraced! All the majesty of the nation resides in the person of the prince; what, then, must become of it, if he prostitutes it, or suffers it to be prostituted by those who speak and act in his name? The minister who puts into his master's mouth a language unworthy of him, deserves to be turned out of office with every mark of ignominy.

§ 189. Duty of the citizens.

The reputation of individuals is, by a common and natural mode of speaking and thinking, made to reflect on the whole nation. In general, we attribute a virtue or a vice to a people, when that vice or that virtue is frequently observed among them. We say that a nation is warlike, when it produces a great number of brave warriors; that it is learned, when there are many learned men among the citizens; and that it excels in the arts, when it produces many able artists. On the other hand, we call it cowardly, lazy, or stupid, when men of those characters are more numerous there than elsewhere. The citizens, being obliged to labour with all their might to promote the welfare and advantage of their country, not only owe to themselves the care of deserving a good reputation, but they also owe it to the nation, whose glory is so liable to be influenced by theirs. Bacon, Newton, Descartes, Leibnitz, and Bernouilli, have each done honour to his native country, and essentially benefited it by the glory he acquired. Great ministers, and great generals — an Oxenstiern, a Turenne, a Marlborough, a Ruyter — serve their country in a double capacity, both by their actions and by their glory. On the other hand, the fear of reflecting a disgrace on his country will furnish the good citizen with a new motive for abstaining from every dishonourable action. And the prince ought not to suffer his subjects to give themselves up to vices capable of bringing infamy on the nation, or even of simply tarnishing the brightness of its glory; he has a right to suppress and to punish scandalous enormities, which do a real injury to the state.

§ 190. Example of the Swiss.

The example of the Swiss is very capable of showing how advantageous glory may prove to a nation. (56) The high reputation they have acquired for their valour, and which they still gloriously support, has preserved them in peace for above two centuries, and rendered all the powers of Europe desirous of their assistance. Louis XI., while dauphin, was witness of the prodigies of valour they performed at the battle of St. Jacques, near Basle, and he immediately formed the design of closely attaching to his interest so intrepid a nation.1 The twelve hundred gallant heroes, who on this occasion attacked an army of between fifty and sixty thousand veteran troops, first defeated the vanguard of the Armagnacs, which was eighteen thousand strong; afterwards, rashly engaging the main body of the army, they perished almost to a man, without being able to complete their victory.2 But, besides their terrifying the enemy, and preserving Switzerland from a ruinous invasion, they rendered her essential service by the glory they acquired for her arms. A reputation for an inviolable fidelity is no less advantageous to that nation; and they have at all times been jealous of preserving it. The canton of Zug punished with death that unworthy soldier who betrayed the confidence of the duke of Milan by discovering that prince to the French, when, to escape them, he had disguised himself in the habit of the Swiss, and placed himself in their ranks as they were marching out of Novara.3

§ 191. Attacking the glory of a nation is doing her an injury.

Since the glory of a nation is a real and substantial advantage, she has a right to defend it, as well as her other advantages. He who attacks her glory does her an injury; and she has a right to exact of him, even by force of arms, a just reparation. We cannot, then condemn those measures, sometimes taken by sovereigns to support or avenge the dignity of their crown. They are equally just and necessary. If, when they do not proceed from too lofty pretensions, we attribute them to a vain pride, we only betray the grossest ignorance of the art of reigning: and despise one of the firmest supports of the greatness and safety of a state.


(56) This observation properly refers to ante, § 124, p. 54.

1. See the Memoirs of Comines.

2. Of this small army, "eleven hundred and fifty-eight were counted dead on the field, and thirty-two wounded. Twelve men only escaped, who were considered by their countrymen as cowards that had preferred a life of shame to the honour of dying for their country." History of the Helvetic Confederacy, by M. de Watteville, vol. i. p. 250. — Tschudi, p. 425.

3. Vogel's Historical and political Treatise of the Alliances between France and the Thirteen Cantons, p. 75, 76.


The LAW OF NATIONS - BOOK I.

CHAP. XVI.

OF THE PROTECTION SOUGHT BY A NATION, AND
ITS VOLUNTARY SUBMISSION TO A FOREIGN POWER.

§ 192. Protection.

WHEN a nation is not capable of preserving herself from insult and oppression, she may procure the protection of a more powerful state. If she obtains this by only engaging to perform certain articles, as to pay a tribute in return for the safety obtained, — to furnish her protector with troops, — and to embark in all his wars as a joint concern, — but still reserving to herself the right of administering her own government at pleasure, — it is a simple treaty of protection, that does not all derogate from her sovereignty, and differs not from the ordinary treaties of alliance, otherwise than as it creates a difference in the dignity of the contracting parties.

§ 193. Voluntary submission of one nation to another.

But this matter is sometimes carried still farther; and, although a nation is under an obligation to preserve with the utmost care the liberty and independence it inherits from nature, yet when it has not sufficient strength of itself, and feels itself unable to resist its enemies, it may lawfully subject itself to a more powerful nation on certain conditions agreed to by both parties: and the compact or treaty of submission will thenceforward be the measure and rule of the rights of each. For, since the people who enter into subjection resign a right which naturally belongs to them, and transfer it to the other nation, they are perfectly at liberty to annex what conditions they please to this transfer; and the other party, by accepting their submission on this footing, engages to observe religiously all the clauses of the treaty.

§ 194. Several kinds of submission.

This submission may be varied to infinity, according to the will of the contracting parties: it may either leave the inferior nation a part of the sovereignty, restraining it only in certain respects, or it may totally abolish it, so that the superior nation shall become the sovereign of the other, — or, finally, the lesser nation may be incorporated with the greater, in order thenceforward to form with it but one and the same state: and then the citizens of the former will have the same privileges as those with whom they are united. The Roman history furnishes examples of each of these three kinds of submission, — 1. The allies of the Roman people, such as the inhabitants of Latium were for a long time, who, in several respects, depended on Rome, but, in all others, were governed according to their own laws, and by their own magistrates; — 2. The countries reduced to Roman provinces, as Capua, whose inhabitants submitted absolutely to the Romans; — 1 3. The nations to which Rome granted the freedom of the city. In after times the emperors granted that privilege to all the nations subject to the empire, and thus transformed all their subjects into citizens.

§ 195. Right of the citizens when the nation submits to a foreign power.

In the case of a real subjection to a foreign power, the citizens who do not approve this change are not obliged to submit to it: — they ought to be allowed to sell their effects and retire elsewhere. For, my having entered into a society does not oblige me to follow its fate, when it dissolves itself in order to submit to a foreign dominion. I submitted to the society as it then was, to live in that society as the member of a sovereign state, and not in another; I am bound to obey it, while it remains a political society: but, when it divests itself of the quality in order to receive its laws from another state, it breaks the bond of union between its members, and releases them from their obligations.

§ 196. These compacts annulled by the failure of protection.

When a nation has placed itself under the protection of another that is more powerful, or has even entered into subjection to it with a view to receiving its protection, — if the latter does not effectually protect the other in case of need, it is manifest, that, by failing in its engagements, it loses all the rights it had acquired by the convention, and that the other, being disengaged from the obligation it had

contracted, re-enters into the possession of all its rights, and recovers its independence, or its liberty. It is to be observed that this takes place even in cases where the protector does not fail in his engagements through the want of good faith, but merely through inability. For, the weaker nation having submitted only for the sake of obtaining protection, — if the other proves unable to fulfil that essential condition, the compact is dissolved; — the weaker resumes its rights, and may, if it thinks proper, have recourse to a more effectual protection.2 Thus, the dukes of Austria, who had acquired a right of protection, and in some sort a sovereignty over the city of Lucerne, being unwilling or unable to protect it effectually, that city concluded an alliance with the three first cantons; and the dukes having carried their complaint to the emperor, the inhabitants of Lucerne replied, "that they had used the natural right common to all men, by which every one is permitted to endeavour to procure his own safety when he is abandoned by those who are obliged to grant him assistance."3

§ 197. Or by the infidelity of the party protected.

The law is the same with respect to both the contracting parties: if the party protected do not fulfil their engagements with fidelity, the protector is discharged from his; he may afterwards refuse his protection, and declare the treaty broken, in case the situation of his affairs renders such a step advisable.

§ 198. And by the encroachments of the protector.

In virtue of the same principle which discharges one of the contracting parties when the other fails in his engagements, if the more powerful nation should assume a greater authority over the weaker one than the treaty of protection or submission allows, the latter may consider the treaty as broken, and provide for its safety according to its own discretion. If it were otherwise, the inferior nation would lose by a convention which it had only formed with a view to its safety; and if it were still bound by its engagements when its protector abuses them and openly violates his own, the treaty would, to the weaker party, prove a downright deception. However, as some people maintain, that, in this case, the inferior nation has only the right of resistance and of imploring foreign aid, — and particularly as the weak cannot take too many precautions against the powerful, who are skilful in colouring over their enterprises, — the safest way is to insert in this kind of treaty a clause declaring it null and void whenever the superior power shall arrogate to itself any rights not expressly granted by the treaty.

§ 199. How the right of the nation protected is lost by its silence.

But if the nation that is protected, or that has placed itself in subjection on certain conditions, does not resist the encroachments of that power from which it has sought support — if it makes no opposition to them — if it preserves a profound silence, when it might and ought to speak — its patient acquiescence becomes in length of time a tacit consent that legitimates the rights of the usurper. There would be no stabiliity in the affairs of men, and especially in those of nations, if long possession, accompanied by the silence of the persons concerned, did not produce a degree of right. But it must be observed, that silence, in order to show tacit consent, ought to be voluntary. If the inferior nation proves that violence and fear prevented its giving testimonies of its opposition, nothing can be concluded from its silence, which therefore gives no right to the usurper.


1. Haque populum Campanum, urbemque Capuam, agros, delubra deum, divina himanaque omnia, in vestram, patres conscripti, populique Romani ditionem dedimus. LIVY, book vii. c. 31.

2. We speak here of a nation that has rendered itself subject to another, and not of one that has incorporated itself with another state, so as to constitute a part of it. The latter stands in the same predicament with all the other citizens. Of this case we shall treat in the following chapter.

3. See The History of Switzerland. The United Provinces, having been obliged to rely wholly on thelr own efforts in defending themselves against Spain, would no longer acknowledge any dependence on the empire from which they had received no assistance. GROTIUS, Hist. of the Troubles in the Low Countries, b. xvi. p. 627.


The LAW OF NATIONS - BOOK I.

CHAP. XVII.

HOW A NATION MAY SEPARATE ITSELF FROM THE STATE
OF WHICH IT IS A MEMBER, OR RENOUNCE ITS ALLEGIANCE
TO ITS SOVEREIGN WHEN IT IS NOT PROTECTED.

§ 200. Difference between the present case and those in the preceding chapter.

WE have said that an independent nation, which, without becoming a member of another state, has voluntarily rendered itself dependent on, or subject to it, in order to obtain protection, is released from its engagements as soon as that protection fails, even though the failure happen through the inability of the protector. But we are not to conclude that it is precisely the same case with every nation that cannot obtain speedy and effectual protection from its natural sovereign or the state of which it is a member. The two cases are very different. In the former, a free nation becomes subject to another state, — not to partake of all the other's advantages, and form with it an absolute union of interests (for, if the more powerful state were willing to confer so great a favour, the weaker one would be incorporated, not subjected), — but to obtain protection alone by the sacrifice of its liberty, without expecting any other return. When, therefore, the sole and indispensable condition of its subjection is (from what cause soever) not complied with, it is free from its engagements; and its duty towards itself obliges it to take fresh methods to provide for its own security. But the several members of one individual state, as they all equally participate in the advantages it procures, are bound uniformly to support it: they have entered into mutual engagements to continue united with each other, and to have on all occasions but one common cause. If those who are menaced or attacked might separate themselves from the others, in order to avoid a present danger, every state would soon be dismembered and destroyed. It is, then, essentially necessary for the safety of society, and even for the welfare of all its members, that each part should with all its might resist a common enemy, rather than separate from the others; and this is consequently one of the necessary conditions of the political association. The natural subjects of a prince are bound to him without any other reserve than the observation of the fundamental laws; — it is their duty to remain faithful to him, as it is his, on the other hand, to take care to govern them well: both parties have but one common interest; the people and the prince together constitute but one complete whole, one and the same society. It is, then, an essential and necessary condition of the political society, that the subjects remain united to their prince as far as in their power. (57)

§ 201. Duty of the members of a state, or subjects of a prince, who are in danger.

When, therefore, a city or a province is threatened or actually attacked, it must not, for the sake of escaping the danger, separate itself from the state of which it is a member, or abandon its natural prince, even when the state or the prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts, in order to maintain itself in its present state. If it is overcome by force, necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but that it may and even ought to prefer the former alternative? Modern usage is conformable to this decision: — a city submits to the enemy when it cannot expect safety from a vigorous resistance; it takes an oath of fidelity to him; and its sovereign lays the blame on fortune alone.

§ 202. Their right when they are abandoned.

The state is obliged to defend and preserve all its members (§ 17); and the prince owes the same assistance to his subjects. If, therefore, the state or the prince refuses or neglects to succour a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The country of Zug, being attacked by the Swiss in 1352, sent for succour to the duke of Austria, its sovereign; but that prince, being engaged in discourse concerning his hawks, at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic confederacy.1 The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens who were supported by the neighbouring nobility, and the house of Austria, it made application to the head of the empire: but Charles IV., who was then emperor, declared to its deputies that he could not defend it; — upon which Zurich secured its safety by an alliance with the Swiss.2 The same reason has authorized the Swiss, in general, to separate themselves entirely from the empire, which never protected them in any emergency; they had not owned its authority for a long time before their independence was acknowledged by the emperor and the whole Germanic body, at the treaty of Westphalia.


(57) Nemo potest exure patriam. This is part of natural allegiance, which no individual can shake off until the part of the country where he resides is absolutely conquered by a foreign power, and the parent state has acknowledged the severance. See 1 Chitty's Commercial Law. 129.

1. See Etterlin, Simler, and De Watteville.

2. See the same historians, and Bullinger, Stumpf, Tschudi and Stettler.


The LAW OF NATIONS - BOOK I.

CHAP. XVIII.

OF THE ESTABLISHMENT OF A NATION IN A COUNTRY.

§ 203. Possession of a country by a nation.

HITHERTO we have considered the nation merely with respect to itself, without any regard to the country it possesses. Let us now see it established in a country which becomes its own property and habitation. The earth belongs to mankind in general; destined by the Creator to be their common habitation, and to supply them with food, they all possess a natural right to inhabit it, and derive from it whatever is necessary for their subsistence, and suitable to their wants. But when the human race became extremely multiplied, the earth was no longer capable of furnishing spontaneously, and without culture, sufficient support for its inhabitants; neither could it have received proper cultivation from wandering tribes of men continuing to possess it in common. It therefore became necessary that those tribes should fix themselves somewhere, and appropriate to themselves portions of land, in order that they might, without being disturbed in their labour, or disappointed of the fruits of their industry, apply themselves to render those lands fertile, and thence derive their subsistence. Such must have been the origin of the rights of property and dominion: and it was a sufficient ground to justify their establishment. Since their introduction, the right which was common to all mankind is individually restricted to what each lawfully possesses. The country which a nation inhabits, whether that nation has emigrated thither in a body, or the different families of which it consists were previously scattered over the country, and, there uniting, formed themselves into a political society, — that country, I say, is the settlement of the nation, and it has a peculiar and exclusive right to it.

§ 204. Its right over the parts in its possession.

This right comprehends two things: 1. The domain virtue of which the nation alone may use the country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it every advantage it is capable of yielding. 2. The empire, or the right of sovereign command, by which the nation directs and regulates at its pleasure every thing that passes in the country.

§ 205. Acquisition of the sovereignty in a vacant country.

When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignly of it, at the same time with the domain. For, since, the nation is free and independent, it can have no intention, in settling in a country, to leave to others the right of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government becomes the seal of its jurisdiction, and is called its territory.

§ 206. Another manner of acquiring the empire in a free country.

If a number of free families, scattered over an independent country, come to unite for the purpose of forming a nation or state, they altogether acquire the sovereignty over the whole country they inhabit: for they were previously in possession of the domain — a proportional share of it belonging to each individual family: and since they are willing to form together a political society, and establish a public authority, which every member of the society shall be bound to obey, it is evidently their intention to attribute to that public authority the right of command over the whole country.

§ 207. How a nation appropriates to itself a desert country.

All mankind have an equal right to things that have not yd fallen into the possession of any one; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation: and this title has been usually respected, provided it was soon after followed by a real possession.

§ 208. A question on this subject.

But it is questioned whether a nation can, by the bare act of taking possession, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cultivate. It is not difficult to determine that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will, therefore, not acknowledge the property and sovereignly of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. in effect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monument to show their having taken possession of them, they have paid as little regard to that empty ceremony as to the regulation of the popes, who divided a great part of the world between the crowns of Castile and Portugal.1

§209. Whether it be lawful to take possession of part of a country inhabited only by a few wandering tribes.

There is another celebrated question, to which the discovery of the New World has principally given rise. It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but eratic nations whose scanty population is incapable of occupying the whole? We have already observed (§ 81), in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had, from the beginning, resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not, therefore, deviate from the views of nature, in confining the Indians within narrower limits, However, we cannot help praising the moderation of the English Puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land of which they intended to take possession.2 This laudable example was followed by William Penn, and the colony of Quakers that he conducted to Pennsylvania.

§ 210. Colonies.

When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother-country, naturally becomes a part of the state, equally with its ancient possessions. Whenever, therefore, the political laws, or treaties, make no distinction between them, every thing said of the territory of a nation, must also extend to its colonies.


1. Those decrees being of a very singular nature, and hardly anywhere to be found but in very scarce books, the reader will not be displeased with seeing here an extract of them.

The bull of Alexander VI. by which he gives to Ferdinand and Isabella, king and queen of Castile and Arragon, the New World, discovered by Christopher Columbus.

"Motu proprio" (says the pope), "non ad vestram, vel alterius pro vobis super hoc nobis oblatæ petitionis instantiam, sed de nostra mera liberalitate, et ex certa scientia, ac de apostolicæ potestatis plenitudine, omnes insulas et terras firmas, inventas et inveniendas, detectas et detegendas, versus occidentem el meridiem." (drawing a line from one pole to the other, at a hundred leagues to the west of the Azores.) "auctoritate omnipotentis Dei nobis in beato Petro concessa, ac vicariatis Jesu Christi, qua fungimur in terris, cum omnibus illarum dominiis, civitatibus, &c., vobis, hæredibusque et successoribus vestris, Castellæ et Legionis regibus, in perpetuum tenore præsentium donamus, concedimus, assignamus, vosque et hæredes ac successores, præfatos, illorum dominos, cum plena libera et omni moda potestate, auctoritate et jurisdictione, facimus, constituimus, et deputamus," The pope excepts only what might be in the possession of some other Christian prince before the year 1493; as if he had a greater right to give what belonged to nobody, and especially what was possessed by the American nations. He adds: "Ac quibuscunque personis eujuseunque dignitatis, etiam imperialis et regalis, status, gradus, ordinis, vel conditionis, sub excommunicationis latæ sententiæ pœna, quam eo ipso, si contra fecerint, incurrant, districtius inhibemus ne ad insulas et terras firmas inventas et inveniendas, detactas et detegendas, versus occidentem et meridiem...... pro mercibus habendis, vel quavis alia de causa, accedere præsumant absque vestra ac hæredum et successorum vestrorum præditcorum licentia speciali, &c. Datum Romæ apud S. Petrum anno 1493. IV. nonas Maji, Pontific. nostri anno primo." Leibnitti Codex Juris Gent. Diplomat. 203.

See ibid. (Diplom. 165), the bull by which pope Nicholas V. gave to Alphonso, king of Portugal, and to the infant Henry, the sovereignty of Guinea, and the power of subduing the barbarous nations of those countries forbidding any other to visit that country without the permission of Portugal. This act is dated Rome, on the 8th of January, 1454.

2. History of the English Colonies in North America.


The LAW OF NATIONS - BOOK I.

CHAP. XIX.

OF OUR NATIVE COUNTRY, AND SEVERAL THINGS THAT RELATE TO IT.

§ 211. What is our country.

THE whole of the countries possessed by a nation and subject to its laws, forms, as we have already said, its territory, and is the common country of all the individuals of the nation. We have been obliged to anticipate the definition of the term, native country (§ 122), because our subject led us to treat of the love of our country — a virtue so excellent and so necessary in a state. Supposing, then, this definition already known, it remains that we should explain several things that have a relation to this subject, and answer the questions that naturally arise from it.

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

§ 213. Inhabitants.

The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity.

§ 214. Naturalization. (58)

A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalization. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens, — for example, that of holding public offices — and where, consequently, he has the power of granting only an imperfect naturalization. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalize a single person, without the concurrence of the nation, represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.

§ 215. Children of citizens born in a foreign country.

It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. (59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.

§ 216. Children born at sea.

As to children born at sea, if they are born in those parts of it that are possessed by their nation, they are born in the country: if it is on the open sea, there is no reason to make a distinction between them and those who are born in the country; for, naturally, it is our extraction, not the place of our birth, that gives us rights: and if the children are born in a vessel belonging to the nation, they may be reputed born in its territories; for, it is natural to consider the vessels of a nation as parts of its territory, especially when they sail upon a free sea, since the state retains its jurisdiction over those vessels. And as, according to the commonly received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dominion, all the children born in the vessels of a nation are considered as born in its territory. For the same reason, those born in a foreign vessel are reputed born in a foreign country, unless their birth took place in a port belonging to their own nation; for, the port is more particularly a part of the territory; and the mother, though at that moment on board a foreign vessel, is not on that account out of the country. I suppose that she and her husband have not quitted their native country to settle elsewhere.

§ 217. Children born in the armies of the state.

For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.

§ 218. Settlement.

Settlement is a fixed residence in any place, with an intention of always staying there. A man does not, then, establish his settlement in any place, unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not transfer his settlement elsewhere. In this sense, a person who stops at a place upon business, even though he stay a long time, has only a simple habitation there, but has no settlement. Thus, the envoy of a foreign prince has not his settlement at the court where he resides.

The natural, or original settlement, is that which we acquire by birth, in the place where our father has his; and we are considered as retaining it, till we have abandoned it, in order to choose another. The acquired settlement (adscititium) is that where we settle by our own choice.

§ 219. Vagrants.

Vagrants are people who have no settlement. Consequently, those born of vagrant parents have no country, since a man's country is the place where, at the time of his birth, his parents had their settlement (§ 122), or it is the state of which his father was then a member, which comes to the same point; for, to settle for ever in a nation, is to become a member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. We may, however, consider the country of a vagrant to be that of his child, while that vagrant is considered as not having absolutely renounced his natural or original settlement.

§ 220. Whether a person may quit his country.

Many distinctions will be necessary, in order to give a complete solution to the celebrated question, whether a man may quit his country or the society of which he is a member. (60) — 1. The children are bound by natural ties to the society in which they were born; they are under an obligation to show themselves grateful for the protection it has afforded to their fathers, and are in a great measure indebted to it for their birth and education. They ought, therefore, to love it, as we have already shown (§ 122), to express a just gratitude to it, and requite its services as far as possible, by serving it in turn. We have observed above (§ 212), that they have a right to enter into the society of which their fathers were members. But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth. If he does not find it advantageous to remain in it, he is at liberty to quit it, on making it a compensation for what it has done in his favour,1 and preserving, as far as his new engagements will allow him, the sentiments of love and gratitude he owes it. A man's obligations to his natural country may, however, change, lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good reason, in order to choose another, or has been banished from it deservedly or unjustly, in due form of law or by violence.

2. As soon as the son of a citizen attains the age of manhood, and acts as a citizen, he tacitly assumes that character; his obligations, like those of others who expressly and formally enter into engagements with society, become stronger and more extensive: but the case is very different with respect to him of whom we have been speaking. When a society has not been formed for a determinate time, it is allowable to quit it, when that separation can take place without detriment to the society. A citizen may therefore quit the state of which he is a member, provided it be not in such a conjuncture when he cannot abandon it without doing it a visible injury. But we must here draw a distinction between what may in strict justice be done, and what is honourable and conformable to every duty — in a word, between the internal, and the external obligation. Every man has a right to quit his country, in order to settle in any other, when by that step he does not endanger the welfare of his country. But a good citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonourable advantage of our liberty, to quit our associates upon slight pretences, after having derived considerable advantages from them; and this is the case of every citizen, with respect to his country.

3. As to those who have the cowardice to abandon their country in a time of danger, and seek to secure themselves, instead of defending it, they manifestly violate the social compact, by which all the contracting parties engaged to defend themselves in a united body, and in concert; they are infamous deserters, whom the state has a right to punish severely.2

§ 221. How a person may absent himself for a time.

In a time of peace and tranquillity, when the country has no actual need of all her children, the very welfare of the state, and that of the citizens, requires that every individual be at liberty to travel on business, provided that he be always ready to return, whenever the public interest recalls him. It is not presumed that any man has bound himself to the society of which he is a member, by an engagement never to leave the country when the interest of his affairs requires it, and when he can absent himself without injury to his country.

§ 222. Variation of the political laws in this respect, (61) These must be obeyed.

The political laws of nations vary greatly in this respect. In some nations, it is at all times, except in case of actual war, allowed to every citizen to absent himself, and even to quit the country altogether, whenever he thinks proper without alleging any reason for it. This liberty, contrary in its own nature to the welfare and safety of society, can nowhere be tolerated but in a country destitute of resources and incapable of supplying the wants of its inhabitants. In such a country there can only be an imperfect society; for civil society ought to be capable of enabling all its members to procure, by their own labour and industry, all the necessaries of life: unless it effects this, it has no right to require them to devote themselves entirely to it. In some other states, every citizen is left at liberty to travel abroad on business, but not to quit his country altogether, without the express permission of the sovereign. Finally, there are states where the rigour of the government will not permit any one whatsoever to go out of the country without passports in form, which are even not granted without great difficulty. In all these cases, it is necessary to conform to the laws, when they are made by a lawful authority. But, in the last-mentioned case, the sovereign abuses his power, and reduces his subjects to an insupportable slavery, if he refuses them permission to travel for their own advantage, when he might grant it to them without inconvenience, and without danger to the state. Nay, it will presently appear, that, on certain occasions, he cannot, under any pretext, detain persons who wish to quit the country, with the intention of abandoning it for ever.

§ 223. Cases in which a citizen has a right to quit his country.

There are cases in which a citizen has an absolute right to renounce his country, and abandon it entirely — a right founded on reasons derived from the very nature of the social compact. 1. If the citizen cannot procure subsistence in his own country, it is undoubtedly lawful for him to seek it elsewhere. For, political or civil society being entered into only with a view of facilitating to each of its members the means of supporting himself, and of living in happiness and safety, it would be absurd to pretend that a member, whom it cannot furnish with such things as are most necessary, has not a right to leave it.

2. If the body of the society, or he who represents it, absolutely fail to discharge their obligations towards a citizen, the latter may withdraw himself. For, if one of the contracting parties does not observe his engagements, the other is no longer bound to fulfil his; as the contract is reciprocal between the society and its members. It is on the same principle, also, that me society may expel a member who violates its laws.

3. If the major part of the nation, or the sovereign who represents it, attempt to enact laws relative to matters in which the social compact cannot oblige every citizen to submission, those who are averse to these laws have a right to quit the society, and go settle elsewhere. For instance, if the sovereign, or the greater part of the nation, will allow but one religion in the state, those who believe and profess another religion have a right to withdraw, and take with mem their families and effects. For, they cannot be supposed to have subjected themselves to the authority of men, in affairs of conscience;3 and if the society suffers and is weakened by their departure, the blame must be imputed to the intolerant party; for it is they who fail in their observance of the social compact — it is they who violate it, and force the others to a separation. We have elsewhere touched upon some other instances of this third case, — that of a popular state wishing to have a sovereign (§ 33), and that of an independent nation taking the resolution to submit to a foreign power (§ 195).

§ 224. Emigrants.

Those who quit their country for any lawful reason, with a design to settle elsewhere, and take their families and property with them, are called emigrants.

§ 225. Sources of their right

Their right to emigrate may arise from several sources.

1. In the cases we have just mentioned (§ 223), it is a natural right, which is certainly reserved to each individual in the very compact itself by which civil society was formed.

2. The liberty of emigration may, in certain cases, be secured to the citizens by a fundamental law of the state. The citizens of Neufchatel and Valangin in Switzerland may quit the country and carry off their effects at their own pleasure, without even paying any duties.

3. It may be voluntarily granted them by the sovereign.

4. This right may be derived from some treaty made with a foreign power, by which a sovereign has promised to leave full liberty to those of his subjects, who, for a certain reason — on account of religion, for instance — desire to transplant themselves into me territories of that power. There are such treaties between the German princes, particularly for cases in which religion is concerned. In Switzerland likewise, a citizen of Bern who wishes to emigrate to Fribourg, and there profess the religion of the place, and, reciprocally, a citizen of Fribourg who, for a similar reason, is desirous of removing to Bern, has a right to quit his native country, and carry off with him all his property.

It appears from several passages in history, particularly the history of Switzerland and the neighbouring countries, that the law of nations, established there by custom some ages back, did not permit a state to receive the subjects of another state into the number of its citizens. This vicious custom had no other foundation than the slavery to which the people were then reduced. A prince, a lord, ranked his subjects under the head of his private property; he calculated their number as he did that of his flocks; and, to the disgrace of human nature, this strange abuse is not yet everywhere eradicated.

§ 226. If the sovereign infringes their right, he injures them.

If the sovereign attempts to molest those who have a right to emigrate, he does them an injury; and the injured individuals may lawfully implore the protection of the power who is willing to receive them. Thus we have seen Frederic William, king of Prussia, grant his protection to the emigrant Protestants of Saltzburgh.

§ 227. Supplicants.

The name of supplicants is given to all fugitives who implore the protection of a sovereign against the nation or prince they have quitted. We cannot solidly establish what the law of nations determines with respect to them, until we have treated of the duties of one nation towards others.

§ 228. Exile and banishment.

Finally, exile is another manner of leaving our country. An exile is a man driven from the place of his settlement, or constrained to quit it, but without a mark of infamy. Banishment is a similar expulsion, with a mark of infamy annexed.4 Both may be for a limited time, or for ever. If an exile, or banished man, had his settlement in his own country, he is exiled or banished from his country. It is, however, proper to observe that common usage applies also the terms exile and banishment to the expulsion of a foreigner who is driven from a country where he had no settlement, and to which he is, either for a limited time, or for ever, prohibited to return.

As a man may be deprived of any right whatsoever by way of punishment — exile, which deprives him of the right of dwelling in a certain place, may be inflicted as a punishment: banishment is always one; for, a mark of infamy cannot be set on any one, but with a view of punishing him for a fault, either real or pretended.

When the society has excluded one of its members by a perpetual banishment, he is only banished from the lands of that society, and it cannot hinder him from living wherever else he pleases; for, after having driven him out, it can no longer claim any authority over him. The contrary, however, may take place by particular conventions between two or more states. Thus, every member of the Helvetic confederacy may banish its own subject out of the territories of Switzerland in general; and in this case the banished person will not be allowed to live in any of the cantons, or in the territories of their allies.

Exile is divided into voluntary and involuntary. It is voluntary, when a man quits his settlement to escape some punishment, or to avoid some calamity — and involuntary, when it is the effect of a superior order.

Sometimes a particular place is appointed, where the exiled person is to remain during his exile; or a certain space is particularized, which he is forbid to enter. These various circumstances and modifications depend on him who has the power of sending into exile.

§ 229. The exile and banished man have a right to live somewhere.

A man, by being exiled or banished, does not forfeit the human character, nor consequently his right to dwell somewhere on earth. He derives this right from nature, or rather from its Author, who has destined the earth for the habitation of mankind; and the introduction of property cannot have impaired the right which every man has to the use of such things as are absolutely necessary — a right which he brings with him into the world at the moment of his birth.

§ 230. Nature of this right.

But though this right is necessary and perfect in the general view of it, we must not forget that it is but imperfect with respect to each particular country. For, on the other hand, every nation has a right to refuse admitting a foreigner into her territory, when he cannot enter it without exposing the nation to evident danger, or doing her a manifest injury, what she owes to herself, the care of her own safety, gives her this right; and, in virtue of her natural liberty, it belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner (Prelim. § 16). He cannot, then, settle by a full right, and as he pleases, in the place he has chosen, but must ask permission of the chief of the place; and, if it is refused, it is his duty to submit.

§ 231. Duty of nations towards them.

However, as property could not be introduced to the prejudice of the right acquired by every human creature, of not being absolutely deprived of such things as are necessary — no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country. But, if particular and substantial reasons prevent her from affording him an asylum, this man has no longer any right to demand it — because, in such a case, the country inhabited by the nation cannot, at the same time, serve for her own use, and that of this foreigner. Now, supposing even that things are still in common, nobody can arrogate to himself the use of a thing which actually serves to supply the wants of another. Thus, a nation, whose lands are scarcely sufficient to supply the wants of the citizens, is not obliged to receive into its territories a company of fugitives or exiles. Thus, it ought even absolutely to reject them, if they are infected with a contagious disease. Thus, also, it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens, that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged to follow, in this respect, the suggestions of prudence. But this prudence should be free from unnecessary suspicion and jealousy; it should not be carried so far as to refuse a retreat to the unfortunate, for slight reasons, and on groundless and frivolous fears. The means of tempering it will be, never to lose sight of that charity and commiseration which are due to the unhappy. We must not suppress these feelings even for those who have fallen into misfortune through their own fault. For, we ought to hate the crime, but love the man, since all mankind ought to love each other.

§ 232. A nation cannot punish them for faults committed out of its territories.

If an exiled or banished man has been driven from his country for any crime, it does not belong to the nation in which he has taken refuge to punish him for that fault committed in a foreign country. For, nature does not give to men or to nations any right to inflict punishment, except for their own defence and safety (§ 169); whence it follows that we cannot punish any but those by whom we have been injured.

§ 233. Except such as affect the common safety of mankind.

But this very reason shows, that, although the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories, we ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Poisoners, assassins, and incendiaries by profession, may be exterminated wherever they are seized; for they attack and injure all nations by trampling under foot the foundations of their common safety. Thus, pirates are sent to the gibbet by the first into whose hands they fall. If the sovereign of the country where crimes of that nature have been committed, reclaims the perpetrators of them, in order to bring them to punishment, they ought to be surrendered to him, as being the person who is principally interested in punishing them in an exemplary manner. And as it is proper to have criminals regularly convicted by a trial in due form of law, this is a second reason for delivering up malefactors of that class to the states where their crimes have been committed. (62)


(58) See fully in general, and of naturalization in Great Britain in particular, 1 Chitty's Commercial Law, 123 to 131; 1 Bla. Com. 369; Bac. Ab. Aliens. A naturalization in a foreign country, without license, wilt not discharge a natural-born subject from his allegiance, 2 Chalmer's Col. Opin. 363. But a natural-born subject of England, naturalized in America, was holden to be entitled to trade as an American subject to the East Indies, 8 Term Rep. 39, 43, 45; and see Reeves, 2d ed. 328, 330, and 37 Geo. 3, c. 97. — C.

{A native citizen of the United States cannot throw off his allegiance to the government, without an Act of Congress authorizing him to do so. Miller v. The Resolution, 1 Dall. 10; Shanks v. Dupont, 3 Pet. S.C. Rep. 246; Coxe v. McIlvaine, 4 Cranch, 209; The Santissinta Trinidada, 7 Wheat. Rep. 763. The United states v. Gillies, Peter's C.C. Rep. 159.)

(59) See 1 Chitty's Commercial Law, 114, n. 1.; 115, n. 1.

(60) In Great Britain, the established maxim is nemo potest exuere patriam, 1 Bla. C. 369, 3 Chit. Com. Law, 129 to 132.

1. This is the foundation of the tax paid on quitting a country, called, in Latin, census emigrationis.

2. Charles XII. condemned to death and executed General Patkul, a native of Livonia, whom he had made prisoner in an engagement with the Saxons. But the sentence and execution were a violation of the laws of justice. Patkul, it is true, had been born a subject of the king of Sweden; but he had quitted his native country at the age of twelve years, and having been promoted in the army of Saxony, had, with the permission of his former sovereign sold the property he possessed in Livonia. he had therefore quitted his own country, to choose another (as every free citizen is at liberty to do, except, as we have observed above, at a critical moment, when the circumstances of his country require the aid of all her sons), and the king of Sweden, by permitting him to sell his property, had consented to his emigration.

(61) See post. Book II. ch. viii. § 108, p. 174. and Chitty's General Practice, p. 731 to 736, as to writs of ne exeat regno.

(62) A distinction has usually been taken between capital offences and mere misdemeanors, and for one state to allow the taking and removing an offender of the former class back into the country where the offence was committed, in order to take his trial in the latter, but not so in case of misdemeanors. But sometimes, as upon a charge of perjury, a foreign country will allow the removal of an offender even in case of a misdemeanor. See Ex parte Scott, 9 Barn. & Cress. 446. (A foreign government has no right, by the Law of Nations, to demand of the government of the United States a surrender of a citizen or subject of such foreign government, who has committed a crime in his own country. Such a right can only exist by treaty. Comm. v. Deacon, 10 Serg. &c Raw. 125; Case of Dos Santos, 2 Brocken. Rep. 493. The Case of Robins, Bee's Rep. 266; was under the treaty with Great Britain.)

3. See above, the chapter on Religion.

4. The common acceptation of these two terms is not repugnant to our application of them. The French academy says, "Banishment is only applied to condemnations indue course of law. Exile is only an absence caused by some disgrace at court." The reason is plain: such a condemnation from the tribunal of justice entails infamy on the emigrant; whereas a disgrace at court does not usually involve the same consequence.


The LAW OF NATIONS - BOOK I.

CHAP. XX.

OF PUBLIC, COMMON, AND PRIVATE PROPERTY.

§ 234. What the Romans called res communes.

LET us now see what is the nature of the different things contained in the country possessed by a nation, and endeavour to establish the general principles of the law by which they are regulated. This subject is treated by civilians under the title de rerum divisione. There are things which in their own nature cannot be possessed: there are others, of which nobody claims the property, and which remain common, as in their primitive state, when a nation takes possession of a country: the Roman lawyers called those things res communes, things common: such were, with them, the air, the running water, the sea, the fish, and wild beasts.

§ 235. Aggregate wealth of a nation, and its divisions.

Every thing susceptible of property is considered as belonging to the nation that possesses the country, and as forming the aggregate mass of its wealth. But the nation does not possess all those things in the same manner. Those not divided between particular communities, or among the individuals of a nation, are called public property. Some are reserved for the necessities of the state, and form the demesne of the crown, or of the republic: others remain common to all the citizens, who take advantage of them, each according to his necessities, or according to the laws which regulate their use; and these are called common property. There are others that belong to somebody or community, termed join property, res universitatis; and these are, with respect to this body in particular, what the public property is with respect to the whole nation. As the nation may be considered as a great community, we may indifferently give the name of common property to those things that belong to it in common, in such a manner that all the citizens may make use of them, and to those that are possessed in the same manner by a body or community; the same rules hold good with respect to both. Finally, the property possessed by individuals is termed private property, res singulorem.

§ 236. Two ways of acquiring public property.

When a nation in a body takes possession of a country, every thing that is not divided among its members remains common to the whole nation, and is called public property. There is a second way whereby a nation, and, in general, every community, may acquire possessions, viz. by the will of whosoever thinks proper to convey to it, under any title whatsoever, the domain or property of what he possesses.

§ 237. The revenues of the public property are naturally at the sovereign's disposal.

As soon as the nation commits the reins of government to the hands of a prince, it is considered as committing to him, at the same time, the means of governing. Since, therefore, the income of the public property, of the domain of the state, is destined for the expenses of government, it is naturally at the prince's disposal, and ought always to be considered in this light, unless the nation has, in express terms, excepted it in conferring the supreme authority, and has provided in some other manner for its disposal, and for the necessary expenses of the state, and the support of the prince's person and household. Whenever, therefore, the prince is purely and simply invested with the sovereign authority, it includes a full discretional power to dispose of the public revenues. The duty of the sovereign, indeed, obliges him to apply those revenues only to the necessities of the state; but he alone is to determine the proper application of them, and is not accountable for them to any person.

§ 238. The nation may grant him the use and property of its common possessions.

The nation may invest the superior with the sole use of its common possessions, and thus add them to the domain of the state. It may even cede the property of them to him. But this cession of the use of property requires an express act of the proprietor, which is the nation. It is difficult to found it on a tacit consent, because fear too often hinders the subjects from protesting against the unjust encroachments of the sovereign.

§ 239. Or allow him the domain, and reserve to itself the use of them.

The people may even allow the superior the domain of the things they possess in common, and reserve to themselves the use of them in the whole or in the part. Thus, the domain of a river, for instance, may be ceded to the prince, while the people reserve to themselves the use of it for navigation, fishing, the watering of cattle, &c., in that river. In a word, the people may cede to the superior whatever right they please over the common possessions of the nation; but all those particular rights do not naturally, and of themselves, flow from the sovereignty.

§ 240. Taxes.

If the income of the public property, or of the domain, is not sufficient for the public wants, the state supplies the deficiency by taxes. These ought to be regulated in such a manner, that all the citizens may pay their quota in proportion to their abilities, and the advantages they reap from the society. All the members of civil society being equally obliged to contribute, according to their abilities, to its advantage and safety, they cannot refuse to furnish the subsidies necessary to its preservation, when they are demanded by lawful authority.

§ 241. The nation may reserve to itself the right of imposing them.

Many nations have been unwilling to commit to the prince a trust of so delicate a nature, or to grant him a power that he may so easily abuse. In establishing a domain for the support of the sovereign and the ordinary expenses of the state, they have reserved to themselves the right of providing, by themselves or their representatives, for extraordinary wants, in imposing taxes payable by all the inhabitants. In England, the king lays the necessities of the state before the parliament; that body, composed of the representatives of the nation, deliberates, and, with the concurrence of the king, determines the sum to be raised, and the manner of raising it. (63) And of the use the king makes of the money thus raised, that same body obliges him to render it an account.

§ 242. Of the sovereign who has this power.

In other states, where the sovereign possesses the full and absolute authority, it is he alone that imposes taxes, regulates the manner of raising them, and makes use of them as he thinks proper, without giving an account to anybody. The French king at present enjoys this authority,(64) with the simple formality of causing his edicts to be registered by the parliament; and that body has a right to make humble remonstrances, if it sees any inconveniences attending the imposition ordered by the prince: — a wise establishment for causing truth, and the cries of the people, to reach the ears of the sovereign, and for selling some bounds to his extravagance, or to the avidity of the ministers and persons concerned in the revenue.1

§ 243. Duties of the prince with respect to taxes.

The prince who is invested with the power of taxing his people ought by no means to consider the money thus raised as his own property. He ought never to lose sight of the end for which this power was granted him: the nation was willing to enable him to provide, as it should seem best to his wisdom, for the necessities of the state. If he diverts this money to other uses, — if he consumes it in idle luxury, to gratify his pleasures, to satiate the avarice of his mistresses and favourites, — we hesitate not to declare to those sovereigns who are still capable of listening to the voice of truth, that such a one is not less guilty, nay, that he is a thousand times more so, than a private person who makes use of his neighbours' property to gratify his irregular passions. Injustice, though screened from punishment, is not the less shameful.

§ 244. Eminent domain annexed to the sovereignty.

Every thing in the political society ought to tend to the good of the community; and, since even the persons of the citizens are subject to this rule, their property cannot be excepted. The state could not subsist, or constantly administer the public affairs in the most advantageous manner, if it had not a power to dispose occasionally of all kinds of property subject to its authority. It is even to be presumed, that, when the nation takes possession of a country, the property of certain things is given up to the individuals only with this reserve. The right which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the state, is called the eminent domain. It is evident that this right is, in certain cases, necessary to him who governs, and consequently is a part of the empire, or sovereign power, and ought to be placed in the number of the prerogatives of majesty (§ 45). When, therefore, the people confer the empire on any one, they at the same time invest him with the eminent domain, unless it be expressly reserved. Every prince, who is truly sovereign, is invested with this right when the nation has not excepted it, — however limited his authority may be in other respects,

If the sovereign disposes of the public property in virtue of his eminent domain, the alienation is valid, as having been made with sufficient powers.

When, in case of necessity, he disposes in like manner of the possessions of a community, or an individual, the alienation will, for the same reason, be valid. But justice requires that this community, or this individual, be indemnified at the public charge: and if the treasury is not able to bear the expense, all the citizens are obliged to contribute to it; for, the burdens of the state ought to be supported equally, or in a just proportion. The same rules are applicable to this case as to the loss of merchandise thrown overboard to save the vessel.

§ 245. Dominion over public property

Besides the eminent domain, the sovereignty gives a right of another nature over all public, common, and private property, — that is, the empire, or the right of command in all places of the country belonging to the nation. The supreme power extends to everything that passes in the state, wherever it is transacted; and, consequently, the sovereign commands in all public places, on rivers, on highways, in deserts, &c. Every thing that happens there is subject to his authority.

§ 246. The sovereign may make laws with respect to the use of things possessed in common.

In virtue of the same authority, the sovereign may make laws to regulate the manner in which common property is to be used, — as well the property of the nation at large, as that of distinct bodies or corporations. He cannot, indeed, take away their right from those who have a share in that property: but the care he ought to take of the public repose, and of the common advantage of the citizens, gives him doubtless a right to establish laws tending to this end, and, consequently, to regulate the manner in which things possessed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the state to prevent, and against which the prince is obliged to take just measures. Thus, the sovereign may establish wise laws with respect to hunting and fishing, — forbid them in the seasons of propagation, — prohibit the use of certain nets, and of every destructive method, &c. But, as it is only in the character of the common father, governor, and guardian of his people, that the sovereign has a right to make those laws, he ought never to lose sight of the ends which he is called upon to accomplish by enacting them; and if, upon those subjects, he makes any regulations with any other view than that of the public welfare, he abuses his power.

§ 247. Alienation of the property of a corporation.

A corporation, as well as every other proprietor, has a right to alienate and mortgage its property: but the present members ought never to lose sight of the destination of that joint property, nor dispose of it otherwise than for the advantage of the body, or in cases of necessity. If they alienate it with any other view, they abuse their power, and transgress against the duty they own to their own corporation and their posterity; and the prince, in quality of common father, has a right to oppose the measure. Besides, the interest of the state requires that the property of corporations be not squandered away; — which gives the prince intrusted with the care of watching over the public safety, a new right to prevent the alienation of such property. It is then very proper to ordain in a state, that the alienation of the property of corporations should be invalid, without the consent of the superior powers. And indeed the civil law, in this respect, gives to corporations the rights of minors. But this is strictly no more than a civil law; and the opinion of those who make the law of nature alone a sufficient authority to take from a corporation the power of alienating their property without the consent of the sovereign, appears to me to be void of foundation, and contrary to the notion of property. A corporation, it is true, may have received property, either from their predecessors or from any other persons, with a clause that disables them from alienating it: but in this case they have only the perpetual use of it, not the entire and free property. If any of their property was solely given for the preservation of the body, it is evident that the corporation has not a right to alienate it, except in a case of extreme necessity: — and whatever property they may have received from the sovereign is presumed to be of that nature.

§ 248. Use of common property.

All the members of a corporation have an equal right to the use of its common property. But, respecting the manner of enjoying it, the body of the corporation may make such regulations as they think proper, provided that those regulations be not inconsistent with that equality which ought to be preserved in a communion of property. Thus, a corporation may determine the use of a common forest or pasture, either allowing it to all the members according to their wants or allotting to each an equal share; but they have not a right to exclude any one of the number, or to make a distinction to his disadvantage, by assigning him a less share than that of the others.

§ 249. How each member is to enjoy it.

All the members of a body having an equal right to its common property, each individual ought so to manage in taking advantage of it, as not in any wise to injure the common use. According to this rule, an individual is not permitted to construct upon any river that is public property, any work capable of rendering it less convenient for the use of every one else, as, erecting mills, making a trench to turn the water upon his own lands, &c. If he attempts if, he arrogates to himself a private right, derogatory to the common right of the public.

§ 250. Right of anticipation in the use of it.

The right of anticipation (jus praeventionis) ought to be faithfully observed in the use of common things which cannot be used by several persons at the same time. This name is given to the right which the first comer acquires to the use of things of this nature. For instance, if I am actually drawing water from a common or public well, another who comes after me cannot drive me away to draw out of it himself: and he ought to wait till I have done. For, I make use of my right in drawing that water, and nobody can disturb me; a second, who has an equal right, cannot assert it to the prejudice of mine; to stop me by his arrival would be arrogating to himself a better right than he allows me, and thereby violating the law of equality.

§ 251. The same right

The same rule ought to be observed in regard to those common things which are consumed in using them. They belong to the person who first takes possession of them with the intention of applying them to his own use: and a second, who comes after, has no right to take them from him, I repair to a common forest, and begin to fell a tree: you come in afterwards, and would wish to have the same tree: you cannot take it from me: for this would be arrogating to yourself a right superior to mine, whereas our rights are equal. The rule in this case is the same as that which the law of nature prescribes in the use of the productions of the earth before the introduction of property.

§ 252. Preservation and repairs of common possessions.

The expenses necessary for the preservation or reparation of the things that belong to the public, or to a community, ought to be equally borne by all who have a share in them, whether the necessary sums be drawn from the common coffer, or that each individual contributes his quota. The nation, the corporation, and, in general, every collective body, may also establish extraordinary taxes, imposts, or annual contributions, to defray these expenses, — provided there be no oppressive exaction in the case, and that the money so levied be faithfully applied to the use for which it was raised. To this end, also, as we have before observed (§ 103), toll-duties are lawfully established. Highways, bridges, and causeways are things of a public nature, from which all who pass over them derive advantage: it is therefore just that all those passengers should contribute to their support.

§ 253. Duty and right of the sovereign in this respect.

We shall see presently that the sovereign ought to provide for the preservation of the public property. He is no less obliged, as the conductor of the whole nation, to watch over the preservation of the property of a corporation. It is the interest of the state at large that a corporation should not fall into indigence by the ill conduct of its members for the time being. And, as every obligation generates the correspondent right which is necessary to discharge it, the sovereign has here a right to oblige the corporation to conform to their duty. If, therefore, he perceives, for instance, that they suffer their necessary buildings to fall to ruin, or that they destroy their forests, he has a right to prescribe what they ought to do, and to put his orders in force.

§ 254. Private property.

We have but a few words to say with respect to private property: every proprietor has a right to make what use he pleases of his own substance, and to dispose of it as he pleases, when the rights of a third person are not involved in the business. The sovereign, however, as the father of his people, may and ought to set bounds to a prodigal, and to prevent his running to ruin, especially if this prodigal be the father of a family. (65) But he must take care not to extend this right of inspection so far as to lay a restraint on his subjects in the administration of their affairs — which would be no less injurious to the true welfare of the state than to the just liberty of the citizens. The particulars of this subject belong to public law and politics.

§ 255. The sovereign may subject it to regulations of police.

It must also be observed, that individuals are not so perfectly free in the economy or government of their affairs as not to be subject to the laws and regulations of police made by the sovereign. For instance, if vineyards are multiplied to too great an extent in a country which is in want of corn, the sovereign may forbid the planting of the vine in fields proper for tillage; for here the public welfare and the safety of the state are concerned. When a reason of such importance requires it, the sovereign or the magistrate may oblige an individual to sell all the provisions in his possession above what are necessary for the subsistence of his family, and may fix the price he shall receive for them. (66) The public authority may and ought to hinder monopolies, and suppress all practices tending to raise the price of provisions — to which practices the Romans applied the expressions annonam incendere, comprimere, vexare.

§ 256. Inheritances.

Every man may naturally choose the person to whom he would leave his property after his death, as long as his right is not limited by some indispensable obligation — as, for instance, that of providing for the subsistence of his children. (67) The children also have naturally a right to inherit their father's property in equal proportions. But this is no reason why particular laws may not be established in a state, with regard to testaments and inheritances — a respect being, however, paid to the essential laws of nature. Thus, by a rule established in many places with a view to support noble families, the eldest son, is of right, his father's principal heir. Lands perpetually appropriated to the eldest male heir of a family, belong to him by virtue of another right, which has its source in the will of the person who, being sole owner of those lands, has bequeathed them in that manner.


(63) All money bills, imposing a tax, must originate in and be passed by the House of Commons, and afterwards submitted to the lords and the king for their sanction, before they can become law.

(64) This was, of course, when Vattel wrote, and before the Revolution.

1. Too great attention cannot be used in watching the imposition of taxes, which, once introduced, not only continue, but are so easily multiplied. — Alphonso VIII. king of Castile, besieging a city belonging to the Moors (Concham urbem in Celtiberis), and being in want of money, applied to the states of his kingdom for permission to impose, on every free inhabitant, a capitation tax of five golden maravedis. But Peter, Count de Lara, vigorously opposed the measure, "contractaque nobilium manu, ex conventu discedit, armis tueri paratus partam armis et virtute a majoribus immunitatem, neque passururn affirmans nobilitatis opprimendæ atque novis vectigalibus vexandæ ab eo aditu initium fieri; Mauros opprimere non esse tanti, ut graviori servitute rempublicam implicari sinant. Rex, periculo peromotus, ab ea cogitatione desistit. Petrum nobiles, consilio communicato, quotannis convivio excipere decreverunt, ipsum et posteros, — navatæ operæ mercedem, rei gestæ bonæ posteritati monumentum, documentumque ne quavis occasione jus libertatis imminui patiantur." MARIANA.

(65) In Great Britain no such right of interference exists, and a person may lay waste or even burn his own property, unless he thereby endangers a third person, or defrauds a person who has insured against fire. Co. Lit. 254; Saville's case, For. 6, 3 Thomas Co. Lit. 243, n. (m). — C.

(66) In Great Britain no such interference now takes place, though formerly it was exercised. See 1 Bla. Com. 287, — C.

(67) In England a parent has an absolute right to devise or bequeath all his property to a stranger in exclusion of his children.


The LAW OF NATIONS - BOOK I.

CHAP. XXI.

OF THE ALIENATION OF THE PUBLIC PROPERTY, OR THE DOMAIN,
AND THAT OF A PART OF THE STATE.

§ 257. The nation may alienate its public property.

THE nation, being the sole mistress of the property in her possession, may dispose of it as she thinks proper, and may lawfully alienate or mortgage it. This right is a necessary consequence of the full and absolute domain: the exercise of it is restrained by the law of nature only with respect to proprietors who have not the use of reason necessary for the management of their affairs; which is not the case with a nation. Those who think otherwise, cannot allege any solid reason for their opinion; and it would follow from their principles that no safe contract can be entered into with any nation; — a conclusion which attacks the foundation of all public treaties.

§ 258. Duties of a nation in this respect.

But it is very just to say, that the nation ought carefully to preserve her public property — make a proper use of it — not to dispose of it without good reasons, nor to alienate or mortgage it but for a manifest public advantage, or in case of a pressing necessity. This is an evident consequence of the duties a nation owes to herself. The public property is extremely useful and even necessary to the nation; and she cannot squander it improperly without injuring herself, and shamefully neglecting the duty of self-preservation, I speak of the public property, strictly so called, or the domain of the state. Alienating its revenues is cutting the sinews of government. As to the property common to all the citizens, the nation does an injury to those who derive advantage from it, if she alienates it without necessity, or without cogent reasons. She has a right to do this as proprietor of these possessions; but she ought not to dispose of them except in a manner that is consistent with the duties which the body owes its members.

§ 259. Duties of the prince.

The same duties lie on the prince, the director of the nation: he ought to watch over the preservation and prudent management of the public property — to slop and prevent all waste of it — and not suffer it to be applied to improper uses.

§ 260. He cannot alienate the public property.

The prince, or the superior of the society, whatever he is, being naturally no more than the administrator, and not the proprietor of the state, his authority, as sovereign or head of the nation, does not of itself give him a right to alienate or mortgage the public property. The general rule then is, that the superior cannot dispose of the public property, as to its substance — the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, the alienation he makes of it will be invalid, and may at any time be revoked by his successor, or by the nation. This is the law generally received in France; and it was upon this principle that the duke of Sully1 advised Henry IV. to resume the possession of all the domains of the crown alienated by his predecessors.

§ 261. The nation may give him a right to it.

The nation, having the free disposal of all the property belonging to her (§ 257), may convey her right to the sovereign, and consequently confer upon him that of alienating and mortgaging the public property. But this right not being necessary to the conductor of the state, to enable him to render the people happy by his government — it is not to be presumed that the nation have given it to him; and, if they have not made an express law for that purpose, we are to conclude that the prince is not invested with it, unless he has received full, unlimited, and absolute authority.

§ 262. Rules on this subject with respect to treaties between nation and nation.

The rules we have just established relate to alienations of public property in favour of individuals. The question assumes a different aspect when it relates to alienations made by one nation to another:2 it requires other principles to decide it in the different cases that may present themselves. Let us endeavour to give a general theory of them.

1. It is necessary that nations should be able to treat and contract validly with each other, since they would otherwise find it impossible to bring their affairs to an issue, or to obtain the blessings of peace with any degree of certainty. Whence it follows, that, when a nation has ceded any part of its property to another, the cession ought to be deemed valid and irrevocable, as in fact it is, in virtue of the notion of property. This principle cannot be shaken by any fundamental law by which a nation might pretend to deprive themselves of the power of alienating what belongs to them: for, this would be depriving themselves of all power to form contracts with other nations, or attempting to deceive them, A nation with such a law ought never to treat concerning its property: if it is obliged to it by necessity, or determined to do it for its own advantage, the moment it broaches a treaty on the subject, it renounces its fundamental law. It is seldom disputed that an entire nation may alienate what belongs to itself: but it is asked, whether its conductor, its sovereign, has this power? The question may be determined by the fundamental laws. But, if the laws say nothing on this subject, then we have recourse to our second principle, viz.

2. If the nation has conferred the full sovereignty on its conductor — if it has intrusted to him the care, and, without reserve, given him the right, of treating and contracting with other states, it is considered as having invested him with all the powers necessary to make a valid contract. The prince is then the organ of the nation: what he does is considered as the act of the nation itself; and, though he is not the owner of the public property, his alienations of it are valid, as being duly authorized.

§ 263. Alienation of a part of the state.

The question becomes more distinct, when it relates, not to the alienation of some parts of the public property, but to the dismembering of the nation or state itself — the cession of a town or a province that constitutes a part of it. This question, however, admits of a sound decision on the same principles. A nation ought to preserve itself (§ 26) — it ought to preserve all its members — it cannot abandon them; and it is under an engagement to support them in their rank as members of the nation (§ 17). It has not, then, a right to traffic with their rank and liberty, on account of any advantages it may expect to derive from such a negotiation. They have joined the society for the purpose of being members of it — they submit to the authority of the state for the purpose of promoting in concert their common welfare and safety, and not of being at its disposal, like a farm or a herd of cattle. But the nation may lawfully abandon them in a case of extreme necessity; and she has a right to cut them off from the body, if the public safety requires it. When, therefore, in such a case, the state gives up a town or a province to a neighbour or to a powerful enemy, the cession ought to remain valid as to the state, since she had a right to make it: nor can she any longer lay claim to the town or province thus alienated, since she has relinquished every right she could have over it.

§ 264. Rights of the dismembered party.

But the province or town thus abandoned and dismembered from the state, is not obliged to receive the new master whom the state attempts to set over it. Being separated from the society of which it was a member, it resumes all its original rights; and if it be capable of defending its liberty against the prince who would subject it to his authority, it may lawfully resist him, Francis I. having engaged, by the treaty of Madrid, to cede the duchy of Burgundy to the emperor Charles V., the state of that province declared, "that, having never been subject but to the crown of France, they would die subject to it; and that, if the king abandoned them, they would take up arms, and endeavour to set themselves at liberty, rather than pass into a new state of subjection."3 It is true, subjects are seldom able to make resistance on such occasions; and, in general, their wisest plan will be to submit to their new master, and endeavour to obtain the best terms they can.

§265. Whether the prince has power to dismember the state.

Has the prince, or the superior of whatever kind, a power to dismember the state? We answer as we have done with respect to the domain: — if the fundamental laws forbid all dismemberment by the sovereign, he cannot do it without the concurrence of the nation or its representatives. But, if the laws are silent, and if the prince has received a full and absolute authority, he is then the depositary of the rights of the nation, and the organ by which it declares its will. The nation ought never to abandon its members but in a case of necessity, or with a view to the public safety, and to preserve itself from total ruin; and the prince ought not to give them up except for the same reasons. But, since he has received an absolute authority, it belongs to him to judge of the necessity of the case, and of what the safety of the state requires.

On occasion of the above-mentioned treaty of Madrid, the principal persons in France, assembled at Cognac after the king's return, unanimously resolved, "that his authority did not extend so far as to dismember the crown."4 The treaty was declared void, as being contrary to the fundamental law of the kingdom: and, indeed, it had been concluded without sufficient powers: for, as the laws in express terms refused to the king the power of dismembering the kingdom, the concurrence of the nation was necessary for that purpose; and it might give its consent by the medium of the states-general. Charles V. ought not to have released his prisoner before those very states had approved the treaty; or rather, making a more generous use of his victory, he should have imposed less rigorous conditions, such as Francis I. would have been able to comply with, and such as he could not, without dishonour, have refused to perform. But now that there are no longer any meetings of the states-general in France, the king remains the sole organ of the state, with respect to other powers: these latter have a right to take his will for that of all France; and the cessions the king might make them would remain valid, in virtue of the tacit consent by which the nation has vested the king with unlimited powers to treat with them. Were it otherwise, no solid treaty could be entered into with the crown of France. For greater security, however, other powers have often required that their treaties should be registered in the parliament of Paris; but at present even this formality seems to be laid aside.


1. See his Memoirs.

2. Quod domania regnorum inalienabilia et semper revocabilia dicuntur, id respectu privatorum intelligitur; nam contra alias gentes divino privilegio opus foret Leibnitz, Praefat. ad Cou. Jur. Gent. Diplomat

3. Mezeray's History of France, vol. ii. p. 458.

4. Mezeray's History of France, vol. ii. p. 458.


The LAW OF NATIONS - BOOK I.

CHAP. XXII.

OF RIVERS STREAMS, AND LAKES.

§ 266. A river that separates two territories.

WHEN a nation takes possession of a country, with a view to settle there, it takes possession of every thing included in it, as lands, lakes, rivers, &c. But it may happen that the country is bounded and separated from another by a river; in which case, it is asked, to whom this river belongs. It is manifest, from the principles established in Chap. XVIII., that it ought to belong to the nation who first took possession of it. This principle cannot be denied; but the difficulty is, to make the application. It is not easy to determine which of the two neighbouring nations was the first to take possession of a river that separates them. For the decision of such questions, the rules which may be deducted from the principles of the law of nations are as follow: —

1. When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also: for, the utility of a river is too great to admit a supposition that the nation did not intend to reserve it to herself. Consequently, the nation that first established her dominion on one of the banks of the river is considered as being the first possessor of all that part of the river which bounds her territory. When there is a question of a very broad river, this presumption admits not of a doubt, so far, at least, as relates to a part of the river's breadth; and the strength of the presumption increases or diminishes in an inverse ratio with the breadth of a river; for, the narrower the river is, the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation. (68)

2. If that nation has made any use of the river, as, for navigating or fishing, it is presumed with the greatest certainty that she has resolved to appropriate the river to her own use.

3. If, of two nations inhabiting the opposite banks of the river, neither party can prove that they themselves, or those whose rights they inherit, were the first settlers in those tracts, it is to be supposed that both nations came there at the same time, since neither of them can give any reason for claiming the preference; and in this case the dominion of each will extend to the middle of the river.(68a)

4. A long and undisputed possession establishes the right of nation,(69) otherwise there could be no peace, no stability between them; and notorious facts must be admitted to prove the possession. Thus, when from time immemorial a nation has, without contradiction, exercised the sovereignty upon a river which forms her boundary, nobody can dispute with that nation the supreme dominion over the river in question.

5. Finally, if treaties determine any thing on this question, they must be observed. To decide it by accurate and express stipulations, is the safest mode; and such is, in fact, the method taken by most powers at present.

§ 267. Of the bed of a river which is dried up, or takes another course.

If a river leaves its bed, whether it be dried up or takes its course elsewhere, the bed belongs to the owner of the river; for, the bed is a part of the river; and he who had appropriated to himself the whole, had necessarily appropriated to himself all its parts.

§ 268. The right of alluvion. (70)

If a territory which terminates on a river has no other boundary than that river, it is one of those territories that have natural or indeterminate bounds (territoria arcifinia), and it enjoys the right of alluvion; that is to say, every gradual increase of soil, every addition which the current of the river may make to its bank on that side, is an addition to that territory, stands in the same predicament with it, and belongs to the same owner. For, if I take possession of a piece of land, declaring that I will have for its boundary the river which washes its side, — or if it is given to me upon that footing, — I thus acquire, beforehand, the right of alluvion; and, consequently, I alone may appropriate to myself whatever additions the current of the river may insensibly make to my land: — I say "insensibly,"; because in the very uncommon case called avulsion, when the violence of the stream separates a considerable part from one piece of land and joins it to another, but in such manner that it can still be identified, the property of the soil so removed naturally continues vested in its former owner. The civil laws have thus provided against and decided this case, when it happens between individual and individual; they ought to unite equity with the welfare of the state, and the care of preventing litigations.

In case of doubt, every territory terminating on a river is presumed to have no other boundary than the river itself: because nothing is more natural than to take a river for a boundary, when a settlement is made; and wherever there is a doubt, that is always to be presumed which is most natural and most probable.

§ 269. Whether alluvion produces any change in the right to a river.

As soon as it is determined that a river constitutes the boundary line between two territories, whether it remains common to the inhabitants on each side of its banks, or whether each shares half of it, or, finally, whether it belongs entirely to one of them, their rights with respect to the river are in no wise changed by the alluvion. If, therefore, it happens that, by a natural effect of the current, one of the two territories receives an increase, while the river gradually encroaches on the opposite bank, the river still remains the natural boundary of the two territories, and notwithstanding the progressive changes in its course, each retains over it the same rights which it possessed before; so that, if, for instance, it be divided in the middle between the owners of the opposite banks, that middle, though it changes its place, will continue to be the line of separation between the two neighbours. The one loses, it is true, while the other gains; but nature alone produces this change: she destroys the land of the one, while she forms new land for the other. The case cannot be otherwise determined, since they have taken the river alone for their limits.

§ 270. Consequences of a river changes its bed.

But if, instead of a gradual and progressive change of its bed, the river, by an accident merely natural, turns entirely out of its course, and runs into one of the two neighbouring states, the bed which it has abandoned becomes, thenceforward, their boundary, and remains the property of the former owner of the river (§ 267); the river itself is, as it were, annihilated in all that part, while it is reproduced in its new bed, and there belongs only to the state in which it flows.

This case is very different from that of a river which changes its course without going out of the same state. The latter, in its new course, continues to belong to its former owner, whether that owner be the state, or any individual to whom the state has given it; because rivers belong to the public in whatever part of the country they flow. Of the bed which it has abandoned, a moiety accrues to the contiguous lands on each side, if they are lands that have natural boundaries, with the right of alluvion, That bed (notwithstanding what we have said in § 267) is no longer the property of the public, because of the right of alluvion vested in the owners of its banks, and because the public held possession of the bed only on account of its containing a river. But if the adjacent lands have not natural boundaries, the public still retains the property of the bed. The new soil over which the river takes its course is lost to the proprietor, because all the rivers in the country belong to the public.

§ 271. Works tending to turn the current

It is not allowable to raise any works on the bank of a river, which have a tendency to turn its course, and to cast it upon the opposite bank: this would be promoting our own advantage at our neighbour's expense. Each can only secure himself, and hinder the current from undermining and carrying away his land. (72)

§ 272. or, in general, prejudicial to the rights of others. (73)

In general, no person ought to build on a river, any more than elsewhere, any work that is prejudicial to his neighbour's rights. If a river belongs to one nation, and another has an incontestible right to navigate it, the former cannot erect upon it a dam or a mill which might render it unfit for navigation. The right which the owners of the river possess in this case is only that of a limited property; and, in the exercise of it, they are bound to respect the rights of others.

§ 273. Rules in relation to interfering rights.

But, when two different rights to the same thing happen to clash with each other, it is not always easy to determine which ought to yield to the other: the point cannot be satisfactorily decided, without attentively considering the nature of the rights and their origin. For example, a river belongs to me, but you have a right to fish in it: and the question is, whether I may erect mills on my river, whereby the fishery will become more difficult and less advantageous? The nature of our rights seems to determine the question in the affirmative. I, as proprietor, have an essential right over the river itself: — you have only a right to make use of it — a right which is merely accessory, and dependent on mine; you have but a general right to fish as you can in my river, such as you happen to find it, and in whatever state I may think fit to possess it. I do not deprive you of your right by erecting my mills: it still exists in the general view of it; and, if it becomes less useful to you, it is by accident, and because it is dependent on the exercise of mine.(74)

The case is different with respect to the right of navigation, of which we have spoken. This right necessarily supposes that the river shall remain free and navigable, and therefore excludes every work that will entirely interrupt its navigation.

The antiquity and origin of the rights serve, no less than their nature, to determine the question. The more ancient right, if it be absolute, is to be exerted in its full extent, and the other only so far as it may be extended without prejudice to the former; for, it could only be established on this fooling, unless the possessor of the first right has expressly consented to its being limited.

In the same manner, rights ceded by the proprietor of any thing are considered as ceded without prejudice to the other rights that belong to him, and only so far as they are consistent with these latter, unless an express declaration, or the very nature of the right, determine it otherwise. If I have ceded to another the right of fishing in my river, it is manifest that I have ceded it without prejudice to my other rights, and that I remain free to build on that river such works as I think proper, even though they should injure the fishery, provided they do not altogether destroy it.(75) A work of this latter kind, such as a dam that would hinder the fish from ascending it, could not be built but in case of necessity, and on making, according to circumstances, an adequate compensation to the person who has a right to fish there.

§ 274. Lakes.

What we have said of rivers and streams, may be easily applied to lakes. Every lake, entirely included in a country, belongs to the nation that is the proprietor of that country; for in taking possession of a territory, a nation is considered as having appropriated to itself every thing included in it; and, as it seldom happens that the property of a lake of any considerable extent falls to the share of individuals, it remains common to the nation. If this lake is situated between two states, it is presumed to be divided between them at the middle, while there is no title, no constant and manifest custom, to determine otherwise.

§ 275. Increase of a lake.

What has been said of the right of alluvion, in speaking of rivers, is also to be understood as applying to lakes. When a lake which bounds a state belongs entirely to it, every increase in the extent of that lake falls under the same predicament as the lake itself; but it is necessary that the increase should be insensible, as that of land in alluvion, and moreover that it be real, constant, and complete. To explain myself more fully. — 1. I speak of insensible increase: this is the reverse of alluvion; the question here relates to the increase of a lake, as in the other case, to an increase of soil. If this increase be not insensible, — if the lake, overflowing its banks, inundates a large tract of land, this new portion of the lake, this tract thus covered with water, still belongs to its former owner. Upon what principles can we found the acquisition of it in behalf of the owner of the lake? The space is very easily identified, though it has changed its nature: and it is too considerable to admit a presumption that the owner had no intention to preserve it to himself, notwithstanding the changes that might happen to it.

But 2. If the lake insensibly undermines a part of the opposite territory, destroys it, and renders it impossible to be known, by fixing itself there, and adding it to its bed, that part of the territory is lost to its former owner; it no longer exists; and the whole of the lake thus increased still belongs to the same state as before.

3. if some of the lands bordering on the lake are only overflowed at high water, this transient accident cannot produce any change in their dependence. The reason why the soil which the lake invades by little and little belongs to the owner of the lake and is lost to its former proprietor, is, because the proprietor has no other boundary than the lake, nor any other marks than its banks, to ascertain how far his possessions extend. If the water advances insensibly, he loses; if it retires in like manner, he gains; such must have been the intention of the nations who have respectively appropriated to themselves the lake and the adjacent lands: — it can scarcely be supposed that they had any other intention. But a territory overflowed for a time is not confounded with the rest of the lake: it can still be recognised; and the owner may still retain his right of property in it. Were it otherwise, a town overflowed by a lake would become subject to a different government during the inundation, and return to its former sovereign as soon as the waters were dried up.

4. For the same reasons, if the waters of the lake, penetrating by an opening into the neighbouring country, there form a bay, or new lake, joined to the first by a canal, this new body of water and the canal belong to the owner of the country in which they are formed, For the boundaries are easily ascertained: and we are not to presume an intention of relinquishing so considerable a tract of land in case of its happening to be invaded by the waters of an adjoining lake.

It must be observed that we here treat the question as arising between two states: it is to be decided by other principles when it relates to proprietors who are members of the same state. In the latter case, it is not merely the bounds of the soil, but also its nature and use, that determine the possession of it. An individual who possesses a field on the borders of a lake, cannot enjoy it as a field when it is overflowed; and a person who has, for instance, the right of fishing in the lake, may exert his right in this new extent: if the waters retire, the field is restored to the use of its former owner. If the lake penetrates by an opening into the low lands in its neighbourhood, and there forms a permanent inundation, this new lake, belongs to the public, because all lakes belong to the public.

§ 276. Land formed on the banks of a lake.

The same principles show, that if the lake insensibly forms an accession of land on its banks, either by retiring or in any other manner, this increase of land belongs to the country which it joins, when that country has no other boundary than the lake. It is the same thine as alluvion on the banks of the river,

§ 277. Bed of a lake dried up.

But, if the lake happened to be suddenly dried up, either totally or in a great part of it, the bed would remain in the possession of the sovereign of the lake; the nature of the soil, so easily known, sufficiently marking out the limits.

§ 278. Jurisdiction over lakes and rivers.

The empire or jurisdiction over lakes and rivers is subject to the same rules as the property of them, in all the cases which we have examined. Each state naturally possesses it over the whole or the part of which it possesses the domain. We have seen (§ 245) that the nation, or its sovereign, commands in all places in its possession.


(68) As regards private rights, there is no legal presumption that the soil of a navigable river belongs to the owners of the adjoining lands, ex utraque parte, or otherwise, Rex v. Smith, 2 Doug. 411. {Palmer v. Hicks, 66 Johns Rep. 133.}

(68a) (5 Wheat. Rep. 374, 379; 3 Mass, Rep. 147.) [This note was anomalously numbered (1) in the original]

(69) As to what is a sufficiently long and undisturbed possession, by the law of France, Jersey, and England, in general, see Benest v. Pipon, Knapp's Rep. 67.

(70) As to the rights of alluvion, or sudden derelict in general, see The King v. Yarborough, 1 Dow Rep. New Series, 178; 4 Dowl. & Ry. 799; 3 Barn. & Cres. 91, S.C.; 5 Bing. 163, 169; 1 Thomas Co. Lit. 47, in note; Scuites on Aquatic Rights; Chitty's General Practice, 199, 200. {2 Johns. Rep. 322; 3 Mass. Rep. 325; 2 Hall's L. Journ. 307; 5 Hall's L. Journ. 1, 113.)

(71) This principle of the law of nations has been ably discussed as part of the municipal law of Scotland and England in Menzies v. Breadalbone, 3 Wils. & Shaw, 235; and see The King v. Lord Yarborough, 1 Dow. Rep., New Series, 179; and Wright v. Howard. 1 Sim. & Stu. 190; Rex v. Trafford, 1 Barn. & Adolph. 874, and Chitty's General Practice, 610. {4 Dall. Rep. 211; 13 Mass. 420, 507; 3 Har. & McHen. 441; 2 Conn. Rep. 584; Coxe's Rep, 460.)

(72) That is permitted as well as a bank or groove to prevent an alteration in the current. Rex v. Pagham, 8 Barn. & Cress. 355; Rex v. Trafford, 1 Barn. & Adolph. 874; 2 Man. & Ryl, 468; 1 Moore & Scott, 401; 8 Bing. 204. (in error.)

(73) See note 72.

(74) But this doctrine seems questionable. See Wright v. Howard, 1 Sim. & Stu. 190; and Mason v. Hill, 3 Barn. & Adolph. 304; Chitty's General Prac. 191, 192. Even a right of irrigating at reasonable times may qualify the absolute and general right to the use of the water for working a mill.

(75) See note 74, ante, p. 122,


The LAW OF NATIONS - BOOK I.

CHAP. XXIII.

OF THE SEA.

§ 279. The sea, and its use.(76)

IN order to complete the exposition of the principles of the law of nations with respect to the things a nation may possess, it remains to treat of the open sea. The use of the open sea consists in navigation, and in fishing; along its coasts it is moreover of use for the procuring of several things found near the shore, such as shell-fish, amber, pearls, &c., for the making of salt, and finally, for the establishment of places of retreat and security for vessels.

§ 280. Whether the sea can be possessed, and its dominion appropriated.

The open sea is not of such a nature as to admit the holding possession of it, since no settlement can be formed on it, so as to hinder others from passing. But a nation powerful at sea may forbid others to fish in it and to navigate it; declaring that she appropriates to herself the dominion over it, and that she will destroy the vessels that shall dare to appear in it without her permission. Let us see whether she has a right to do this.

§ 281. Nobody has a right to appropriate to himself the use of the open sea.

It is manifest that the use of the open sea, which consists in navigation and fishing, is innocent and inexhaustible; that is to say — he who navigates or fishes in the open sea does no injury to any one, and the sea, in these two respects, is sufficient for all mankind. Now, nature does not give to man a right of appropriating to himself things that may be innocently used, and that are inexhaustible, and sufficient for all. For, since those things, while common to all, are sufficient to supply the wants of each, — whoever should, to the exclusion of all other particpants, attempt to render himself sole proprietor of them, would unreasonably wrest the bounteous gifts of nature from the parties excluded. The earth no longer furnishing, without culture, the things necessary or useful to the human race, who were extremely multiplied, it became necessary to introduce the right of property, in order that each might apply himself with more success to the cultivation of what had fallen to his share, and multiply, by his labour, the necessaries and conveniences of life. It is for this reason the law of nature approves the rights of dominion and property, which put an end to the primitive manner of living in common. But this reason cannot apply to things which are in themselves inexhaustible; and consequently, it cannot furnish any just grounds for seizing the exclusive possession of them. If the free and common use of a thing of this nature was prejudicial or dangerous to a nation, the care of their own safety would authorize them to reduce that thing under their own dominion, if possible, in order to restrict the use of it by such precautions as prudence might dictate to them. But this is not the case with the open sea, on which people may sail and fish without the least prejudice to any person whatsoever, and without putting any one in danger. No nation, therefore, has a right to take possession of the open sea, or claim the sole use of it, to the exclusion of other nations. The kings of Portugal formerly arrogated to themselves the empire of the seas of Guinea and the East Indies;1 but the other maritime powers gave themselves little trouble about such a pretension.

§ 282. The nation that attempts to exclude another, does it an injury.

The right of navigating and fishing in the open sea being then a right common to all men, the nation that attempts to exclude another from that advantage does her an injury, and furnishes her with sufficient grounds for commencing hostilities, since nature authorizes a nation to repel an injury — that is, to make use of force against whoever would deprive her of her rights.

§ 283. It even does an injury to all nations.

Nay, more, — a nation, which, without a legitimate claim, would arrogate to itself an exclusive right to the sea, and support its pretensions by force, does an injury to all nations; it infringes their common right; and they are justifiable in forming a general combination against it, in order to repress such an attempt. Nations have the greatest interest in causing the law of nations, which is the basis of their tranquillity, to be universally respected. If any one openly tramples it under fool, they all may and ought to rise up against him; and, by uniting their forces to chastise the common enemy, they will discharge their duty towards themselves, and towards human society, of which they are members (Prelim. § 22).

§ 284. It may acquire an exclusive right by treaties:

However, as every one is at liberty to renounce his right, a nation may acquire exclusive rights of navigation and fishing, by treaties, in which other nations renounce in its favour the rights they derive from nature. The latter are obliged to observe their treaties; and the nation they have favoured has a right to maintain by force the possession of its advantages. Thus, the house of Austria has renounced, in favour of England and Holland, the right of sending vessels from the Netherlands to the East Indies. In Grotius, de Jure Belli et Pacis, lib. ii. cap. iii. § 15, may be found many instances of similar treaties.

§ 285. but not by prescription and long use. (77)

As the rights of navigation and of fishing, and other rights which may be exercised on the sea, belong to the class of those rights of mere ability (jura meroe facultatis), which are imprescriptible § 95), they cannot be lost for want of use. Consequently, although a nation should happen to have been, from time immemorial, in sole possession of the navigation or fishery in certain seas, it cannot, on this foundation, claim an exclusive right to those advantages. For, though others have not made use of their common right to navigation and fishery in those seas, it does not thence follow that they have had any intention to renounce it; and they are entitled to exert it whenever they think proper.(78)

§ 286. unless by virtue of a tacit agreement.

But it may happen that the non-usage of the right may assume the nature of a consent or tacit agreement, and thus become a title in favour of one nation against another. When a nation that is in possession of the navigation and fishery in certain tracts of sea claims an exclusive right to them, and forbids all participation on the part of other nations, — if the others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use.(79)

§ 287. The sea near the coasts may become a property.

The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, &c. Now. in all these respects, its use is not inexhaustible; wherefore, the nation, to whom the coasts belong, may appropriate to themselves, and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property? And though, where the catching of fish is the only object, the fishery appeals less liable to be exhausted, yet, if a nation have on their coast a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature, as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive in case there be a sufficient abundance of fish to furnish the neighbouring nations? But if, so far from taking possession of it, the nation has once acknowledged the common right of other nations to come and fish there, it can no longer exclude them from it; it has left that fishery in its primitive freedom, at least with respect to those who have been accustomed to take advantage of it. The English not having originally taken exclusive possession of the herring fishery on their coasts, it is become common to them with other nations.

§ 288. Another reason for appropriating the sea bordering on the coasts.(80)

A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts as far as they are able to protect their right. It is of considerable importance to the safety and welfare of the state that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation. During the war between Spain and the United Provinces, James I., king of England, marked out along his coasts certain boundaries, within which he declared that he would not suffer any of the powers at war to pursue their enemies, nor even allow their armed vessels to stop and observe the ships that should enter or sail out of the ports.2 These parts of the sea, thus subject to a nation, are comprehended in her territory; nor must any one navigate them without her consent. But, to vessels that are not liable to suspicion, she cannot, without a breach of duty, refuse permission to approach for harmless purposes, since it is a duty incumbent on every proprietor to allow to strangers a free passage, even by land, when it may be done without damage or danger. It is true that the state itself is sole judge of what is proper to be done in every particular case that occurs; and, if it judges amiss, it is to blame: but the others are bound to submit. It is otherwise, however, in cases of necessity, — as, for instance, when a vessel is obliged to enter a road which belongs to you in order to shelter herself from a tempest. In this case, the right of entering wherever we can, provided we cause no damage, or that we repair any damage done, is, as we shall show more at large, a remnant of the primitive freedom of which no man can be supposed to have divested himself; and the vessel may lawfully enter in spite of you, if you unjustly refuse her permission.

§ 289. How far this possession may extend. (81)

It is not easy to determine to what distance a nation may extend its rights over the sea by which it is surrounded. Bodinus3 pretends, that according to the common right of all maritime nations, the prince's dominion extends to the distance of thirty leagues from the coast. But this exact determination can only be founded on a general consent of nations, which it would be difficult to prove. Each state may, on this head, make what regulation it pleases so far as respects the transactions of the citizens with each other, or their concerns with the sovereign: but, between nation and nation, all that can reasonably be said is, that in general, the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it; since, on the one hand, she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she has need of it for some lawful end (§ 281), and, on the other, it would be a vain and ridiculous pretension to claim a right which she were wholly unable to assert. The fleets of England have given room to her kings to claim the empire of the seas which surround that island, even as far as the opposite coasts.4 Selden relates a solemn act,5 by which it appears, that, in the time of Edward I., that empire was acknowledged by the greatest part of the maritime nations of Europe; and the republic of the United Provinces acknowledged it, in some measure, by the treaty of Breda, in 1667, at least so far as related to the honours of the flag. But solidly to establish a right of such extent, it were necessary to prove very clearly the express or tacit consent of all the powers concerned. The French have never agreed to this pretension of England; and, in that very treaty of Breda just mentioned, Louis XIV. would not even suffer the channel to be called the English channel, or the British sea. The republic of Venice claims the empire of the Adriatic, and every body knows the ceremony annually performed upon that account. In confirmation of this right we are referred to the examples of Uladislaus, king of Naples, of the emperor Frederic III., and of some of the kings of Hungary, who asked permission of the Venetians for their vessels to pass through that sea.6 That the empire of the Adriatic belongs to the republic to a certain distance from her coasts, in the places of which she can keep possession, and of which the possession is important to her own safety, appears to me incontestable: but I doubt very much whether any power is at present disposed to acknowledge her sovereignty over the whole Adriatic sea. Such pretensions to empire are respected as long as the nation that makes them is able to assert them by force; but they vanish of course on the decline of her power. At present the whole space of the sea within cannon shot of the coast is considered as making a part of the territory; and, for that reason, a vessel taken under the cannon of a neutral fortress is not a lawful prize.(82)

§ 290. Shores and ports. (83)

The shores of the sea incontestably belong to the nation that possesses the country of which they are a part; and they belong to the class of public things. If civilians have set them down as things common to all mankind (res communes), it is only in regard to their use; and we are not thence to conclude that they considered them as independent of the empire: the very contrary appears from a great number of laws. Ports and harbours are manifestly an appendage to and even a part of the country, and consequently are the property of the nation. Whatever is said of the land itself will equally apply to them, so far as respects the consequences of the domain and of the empire.

§ 291. Bays and straits. (84)

All we have said of the parts of the sea near the coast, may be said more particularly, and with much greater reason, of roads, bays, and straits, as still more capable of being possessed, and of greater importance to the safety of the country. But I speak of bays and straits of small extent, and not of those great tracts of sea to which these names are sometimes given, as Hudson's Bay and the Straits of Magellan, over which the empire cannot extend, and still less a right of property. A bay, whose entrance can be defended, may be possessed and rendered subject to the laws of the sovereign; and it is important that it should be so, since the country might be much more easily insulted in such a place, than on the coast that lies exposed to the winds and the impetuosity of the waves.

§ 292. Straits in particular. (65)

It must be remarked, with regard to straits, that, when they serve for a communication between two seas, the navigation of which is common to all, or several nations, the nation which possesses the strait cannot refuse the others a passage through it, provided that passage be innocent and attended with no danger to herself. By refusing it without just reasons, she would deprive those nations of an advantage granted them by nature; and indeed, the right to such a passage is a remnant of the primitive liberty enjoyed by all mankind. Nothing but the care of his own safety can authorize the owner of the strait to make use of certain precautions, and to require certain formalities, commonly established by the custom of nations. He has a right to levy a moderate tax on the vessels that pass, partly on account of the inconvenience they give him, by obliging him to be on his guard — partly as a return for the safety he procures them by protecting them from their enemies, by keeping pirates at a distance, and by defraying the expense attendant on the support of light-houses, sea-marks, and other things necessary to the safety of mariners. Thus, the king of Denmark requires a custom at the straits of the Sound. Such right ought to be founded on the same reasons, and subject to the same rules, as the tolls established on land, or on a river. (See §§ 103 and 104).

§ 293. Right to wrecks. (86)

It is necessary to mention the right to wrecks — a right which was the wretched offspring of barbarism, and which has almost everywhere fortunately disappeared with its parent. Justice and humanity cannot allow of it, except in those cases only where the proprietors of the effects saved from a wreck cannot possibly be discovered. In such cases, those effects belong to the person who is the first to take possession of them, or to the sovereign, if the law reserves them for him.

§ 294. A sea enclosed within the territories of a nation.

If a sea is entirely enclosed by the territories of a nation, and has no other communication with the ocean than by a channel of which that nation may take possession, it appears that such a sea is no less capable of being occupied, and becoming property, than the land; and it ought to follow the late of the country that surrounds it. The Mediterranean, in former times, was absolutely enclosed within the territories of the Romans; and that people, by rendering themselves masters of the strait which joins it to the ocean, might subject the Mediterranean to their empire, and assume the dominion over it. They did not, by such procedure, injure the rights of other nations; a particular sea being manifestly designed by nature for the use of the countries and nations that surround it. Besides, by barring the entrance of the Mediterranean against all suspected vessels, the Romans, by one single stroke, secured the immense extent of their coasts: and this reason was sufficient to authorize them to take possession of it. And, as it had absolutely no communication but with the states which belonged to them, they were at liberty to permit or prohibit the entrance into it, in the same manner as into any of their towns or provinces.

§ 295. The parts of the sea possessed by power are within its jurisdiction. (87)

When a nation takes possession of certain parts of the sea, it takes possession of the empire over them, as well as of the domain, on the same principle which we advanced in treating of the land (§ 205). These parts of the sea are within the jurisdiction of the nation, and a part of its territory: the sovereign commands there; he makes laws, and may punish those who violate them; in a word, he has the same rights there as on land, and in general, every right which the laws of the state allow him.

It is, however, true that the empire and the domain, or property, are not inseparable in their own nature, even in a sovereign state.7 As a nation may possess the domain or property of a tract of land or sea, without having the sovereignly of it, so it may likewise happen that she shall possess the sovereignty of a place, of which the property or the domain, with respect to use, belongs to some other nation. But it is always presumed, that, when a nation possesses the useful domain of any place whatsoever, who has also the higher domain and empire, or the sovereignly (§ 205). We cannot, however, from the possession of the empire, infer, with equal probability, a coexistent possession of the useful domain; for, a nation may have good reasons for claiming the empire over a country, and particularly over a tract of sea, without pretending to have any property in it, or any useful domain. The English have never claimed the property of all the seas over which they have claimed the empire. (88)

This is all we have to say in this first book. A more minute detail of the duties and rights of a nation, considered in herself, would lead us too far. Such detail must, as we have already observed, be sought for in particular treatises on the public and political law. We are very far from flattering ourselves that we have omitted no important article; this is a slight sketch of an immense picture: but an intelligent reader will without difficulty supply all our omissions by making a proper application of the general principles: we have taken the utmost care solidly to establish those principles, and to develop them with precision and perspicuity.


(76) As to the dominion of the main seas, and right to limit the passage thereon, and the claim of the English in the British seas and elsewhere, in general, see the authorities collected in 1 Chitty's Commercial Law, 88 to 108. With respect to the view taken by the English law of rights in and connected with the sea and sea-shore, the doctrine is, that the sea is the property of the king; and that so is the land beneath, except such part of that land as is capable of being usefully occupied without prejudice to navigation, and of which a subject has either had a grant from the king, or has so exclusively used it for so long a time as to confer on him a title by prescription. In the latter case, a presumption is raised that the king has either granted him an exclusive right to it, or has permitted him to have possession of it, and to employ his money and labour upon it, so as to confer upon him a title by occupation, the foundation of most of the rights to property inland. This is the law of England, and also of Jersey, and some other islands belonging to Great Britain. Benest v. Pipon, Knapp's Rep. 67; Blundell v. Cotterall, 5 Bar. & Ald. 268; and The King v. Lord Yarborough, 3 Bar. & Cres. 91, and 1 Dow's Appeal Cases, New Series, 178. In the first mentioned case, it was decided that the lord of a manor cannot establish a claim to the exclusive right of cutting sea-weed on rocks below-water marker, except by a grant from the king, or by such long and undisturbed enjoyment of it (viz. at least for twenty years continuously) as to give him a title by prescription must be uninterrupted and peaceable, both according to the law of England, the civil law, and those of France, Normandy, and Jersey. But, where artificial cuts or recesses have been made on the sea-shore, into and over which the sea afterwards flows, then, in the absence of proof as to acts of ownership, the soil of these recesses is to be presumed to have belonged to the owner of the adjacent estate, and not to the crown. Lowe v. Govett, 3 Bar. & Adol. 863. — C.

1. See Grotius's Mare Liberum, and Selden's Mare Clausum, lib. i. cap. vii.

(77) See observations and authorities, 1 Chit. Com. L. 287, n. 4, 5.

(78) As to the effect of twenty years' uninterrupted use, and what interruption not successfully litigated will prevent a right, see the judgment in Benest v. Picon, Knapp's Rep. 67. — C.

(79) See further, 1 Chit. Com. L. 94, n. 1; ib. 98, s. 1. — C.

(80) See further, 1 Chit. Com. L. 92, n. 2; ib. 94.1; ib. 95, n. 1; Puffnd. 3. c. 3, s. 6, p. 69. — C.

2. Selden's Mare Clausum, lib. ii. (81) See further, Puff. b. 4, c. 5, s. 9. pp. 167, 8; 1 Chit. Com L. 99, n 1; b. 100, n. 1; ib. 101, n, 2; ib. 101, n. 4; ib. 287, n. 7: ib. 441, n. 5.

3. In his Republic, book i. c. x.

4. See Selden's Mare Clausum.

5. Ibid. lib. 2. cap. xxxviii.

6. See Selden's Mare Clausum, lib. i. cap. xvi.

(82) Post, b. 3, c. 7, § 132, p. 344 — C.

(83) See further 1 Chitty's Commercial Law, 100, n. 2. The sea-shore, below low-water mark. prima facie belongs to the king and all his subjects, and no subject can claim an exclusive right to cut seaweed on rocks situated below low-water mark, but by express grant from the king, or uninterrupted presumption. Benest v. Pipon, Knapp's Rep. 67.

(84) See 1 Chitty's Commercial Law, 100. n. 3. — C.

(85) See 1 Chitty's Commercial Law, 101, n. 1. — C.

(86) The right to wreck is not infrequently the subject of litigation in the Municipal Courts of Great Britain; see in general modern cases. Ship Augusta, 1 Hagg. Rep. 16; and The Bailiffs, &c., of Dunwich v. Sterry, 1 Barn. & Adolph 831. — C.

(87) See further, 1 Chitty's Commercial Law, 95, n. 3: Grotius, b. 2, c. 3, s. 13, p. 166. — C.

7. See Book II. § 83.

(88) As to the British seas, and the claims of the English of empire over the seas in general, see Selden's Mare Clausum, b. 2. c. 1, p. 182, and other authorities collected 1 Chitty's Commercial Law, 101, 2, 3. As to the duty of the flag, or the obligation upon other nations to pay a particular mark of respect to British men-of-war, by striking their flag or lowering their topsail, formerly claimed, and so obnoxious to foreign shipping, see id. 101, 2; Molloy, b. 1, c. 5, ss. 11; and see Postlewaite's Did. tit. Sea, British; Marten's L. Nat. 168-9 — 172, 175. Com. Dig. Navigation, A. And, as to the French view of the right of the sea. and of the respects to be observed between ships see Cours de Droit Public Interne et Externe, tom. 2, p. 80 to 84, and id. 396 to 406. — C.


The LAW OF NATIONS

BOOK II:

OF A NATION CONSIDERED IN HER
RELATION TO OTHER STATES

TABLE OF CONTENTS

CHAP. I. Of the common Duties of a Nation towards other States, or the Offices of Humanity between Nations.

1. Foundation of the common and mutual duties of nations.

2. Offices of humanity, and their foundation.

3. General principles of all the mutual duties of nations.

4. Duties of a nation for the preservation of others.

5. She is bound to assist a nation afflicted with famine or any other calamity.

6. She is bound to contribute to the perfection of other states.

7. ———but not by force.

8. The right to require the offices of humanity.

9. The right of judging whether they are to be granted.

10. A nation is not to compel another to perform those offices of which the refusal is no wrong.

11. Mutual love of nations.

12. Each nation is bound to cultivate the friendship of others.

13. ——— to perfect herself, with the view to the advantage of others, and to set them good examples.

14. ——— to take care of their glory.

15. Difference of religion ought not to preclude the offices of humanity.

16. Rule and measure of the offices of humanity.

17. Particular limitation with respect to the prince.

18. No nation ought to injure others.

19. Offences.

20. Bad custom of the ancients.


CHAP. II. Of the Mutual Commerce between Nations.

21. General obligation of nations to carry on mutual commerce.

22. They are bound to favour trade.

23. Freedom of trade.

24. Right of trading belonging to nations.

25. Bach nation is sole judge of the propriety of commerce on her own part.

26. Necessity of commercial treaties.

27. General rule concerning those treaties.

28. Duty of nations in making such treaties.

29. Perpetual or temporary treaties, or treaties revocable at pleasure.

30. Nothing contrary to the tenor of a treaty can be granted to a third party.

31. How far lawful to give up by treaty the liberty of trading with other nations.

32. A nation may restrict her commerce in favour of another nation.

33. A nation may appropriate to herself a particular branch of trade.

34. Consuls.


CHAP. III. Of the Dignity and Equality of Nations, — of Titles, — and other Marks of Honour.

35. Dignity of nations or sovereign states.

36. Their equality.

37. Precedency.

38. The form of government is foreign to this question.

39. A state ought to retain her rank, notwithstanding any changes in the form of her government.

40. Treaties and established customs are to be observed in that respect.

41. Name and honours given by the nation to her conductor.

42. Whether a sovereign may assume what title and honours he pleases.

43. Right of other nations in that respect.

44. Their duty.

45. How titles and honours may be secured.

46. We must conform to general custom.

47. Mutual respect due by sovereigns to each other.

48. How a sovereign ought to maintain his dignity.


CHAP. IV. Of the Right to Security, and the Effects of the Sovereignty and Independence of Nations.

49. Right to security.

50. It produces the right of resistance.

51. ——— and that of obtaining reparation.

52. ——— and the right of punishing.

53. Right of all nations against a mischievous people.

54. No nation has a right to interfere in the government of another state.

55. One sovereign cannot make himself judge of the conduct of another.

56. How far lawful to interfere in a quarrel between a sovereign and his subjects.

57. Right of opposing the interference of foreign powers in the affairs of government.

58. The same right with respect to religion.

59. No nation can be constrained in religious concerns.

60. Offices of humanity in these matters: — missionaries.

61. Circumspection to be used.

62. What a sovereign may do in favour of those who profess his religion in another state.


CHAP. V. Of the Observance of Justice between Nations.

63. Necessity of the observance of justice in human society.

64. Obligation of all nations to cultivate and observe justice.

65. Right of refusing to submit to injustice.

66. This right is a perfect one.

67. It produces — the right of self-defence.

68. ——— the right of doing ourselves justice.

69. The right of punishing injustice.

70. Right of all nations against one that openly despises justice


CHAP. VI. Of the concern a Nation may have in the Actions of her Citizens.

71. The sovereign is bound to avenge the wrongs of the state and to protect the citizens.

72. He must not suffer his subject to offend other nations or their citizens.

73. The ads of individuals not imputable to the nation.

74. ——— unless she approve or ratify them.

75. Conduct to be pursued by the offended party.

76. Duty of the aggressor's sovereign.

77. If he refuses justice, he becomes a party in the fault and offence.

78. Another case in which the nation is guilty of the crimes of the citizens.


CHAP. VII. Effects of the Domain, between Nations.

79. General effects of the domain.

80. What is comprehended in the domain of a nation.

81. The property of the citizens is the national property with respect to foreign states.

82. A consequence of that principle.

83. Connection of the domain of the nation with the sovereignty.

84. Jurisdiction.

85. Effects of the Jurisdiction in foreign countries.

86. Desert and uncultivated places.

87. Duty of the nation in that respect.

88. Right of possessing things that have no owner.

89. Rights granted to another nation.

90. Not allowable to expel a nation from the country she inhabits.

91. ——— nor to extend by violence the bounds of empire.

92. the limits of territories ought to be carefully ascertained.

93. Violation of territory.

94. Prohibition to enter the territory.

95. A country possessed by several nations at the same time.

96. A country possessed by a private person.

97. Independent families in a country.

98. Possessions of certain places only, or of certain rights, in a vacant country.


CHAP. VIII. Rules respecting Foreigners.

99. General idea of the conduct a state ought to observe toward foreigners.

100. Entering the territory.

101. Foreigners are subject to the laws.

102. and punishable according to the laws.

103. Who is the judge of their disputes.

104. Protection due to foreigners.

105. Their duties.

106. To what burdens they are subject.

107. Foreigners continue members of their own nation.

108. The state has no right over the person of a foreigner.

109. ——— nor over his property.

110. Who are the heirs of a foreigner.

111. Will of a foreigner.

112. Escheatage.

113. The right of traite foraine.

114. Immovable property possessed by an alien.

115. Marriages of aliens.


CHAP. IX. Of the Rights retained by all Nations after the Introduction of Domain and Property.

116. What are the rights of which men cannot be deprived.

117. Rights still remaining from the primitive state of communion.

118. Right retained by each nation over the property of others.

119. Right of necessity.

120. Right of procuring provision by force.

121. Right of making use of things belonging to others.

122. Right of carrying off women.

123. Right of passage.

124. ——— and of procuring necessaries.

125. Right of dwelling in a foreign country.

126. Things, of which the use is inexhaustible.

127. Right of innocent use.

128. Nature of that right in general.

129. ——— and in cases not doubtful.

130. Exercise of that right between nations.


CHAP. X. How a Nation is to use her Right of Domain, in order to discharge her Duties towards other Nations, with respect to the Innocent Use of Things.

131. General duty of the proprietor.

132. Innocent passage.

133. Securities may be required.

134. Passage of merchandise.

135. Residence in the country.

136. How we are to act towards foreigners who desire a perpetual residence.

137. Right accruing from a general permission.

138. A right granted as a favour.

139. The nation ought to be courteous.


CHAP. XI. Of Usucaption and Prescription between Nations.

140. Definition of usucaption and prescription.

141. Usucaption and prescription derived from the law of nature.

142. What foundation is required for ordinary prescription.

143. Immemorial prescription.

144. Claimant alleging reasons for his silence.

145. Proprietor sufficiently showing that he does not mean to abandon his right.

146. Prescription founded on the actions of the proprietor.

147. Usucaption and prescription take place between nations.

148. More difficult, between nations, to found them on a presumptive desertion.

149. Other principles that enforce prescription.

150. Effects of the voluntary law of nations on this subject.

151. Law of treaties, or custom, in this matter.


CHAP. XII. Of Treaties of Alliance and other Public Treaties.

152. Nature of treaties.

153. Compacts, agreements, or conventions.

154. By whom treaties are made.

155. Whether a state under protection may make treaties.

156. Treaties concluded by proxies or plenipotentiaries.

157. Validity of treaties.

158. Injury does not render them void.

159. Duly of nations in that respect.

160. Nullity of treaties which are pernicious to the state.

161. Nullity of treaties made for an unjust or dishonest purpose.

162. Whether an alliance may be contracted with those who do not profess the true religion.

163. Obligation to observe treaties.

164. The violation of a treaty is an act of injustice.

165. Treaties cannot be made contrary to those already existing.

166. How treaties may be concluded with several nations with the same view.

167. The more ancient ally entitled to a preference.

168. We owe no assistance in an unjust war.

169. General division of treaties; — those that relate to things already due by the law of nature.

170. Collision of those treaties with the duties we owe to ourselves.

171. Treaties in which we barely promise to do no injury.

172. Treaties concerning things that are not naturally due: — equal treaties.

173. Obligation to preserve equality in treaties.

174. Difference between equal treaties and equal alliances.

175. Unequal treaties, and unequal alliances.

176. An alliance with diminution of sovereignty may annul preceding treaties.

177. We ought, as much as possible, to avoid making unequal alliances.

178. Mutual duties of nations with respect to unequal alliances.

179. ——— in alliances where the inequality is on the side of the more powerful party.

180. How inequality of treaties and alliances may be conformable to the law of nature.

181. Inequality imposed by way of punishment.

182. Other kinds, of which we have spoken elsewhere.

183. Personal and real treaties.

184. Naming the contracting parties in the treaty does not render it personal.

185. An alliance made by a republic is real.

186. Treaties concluded by kings or other monarchs.

187. Perpetual treaties, and those for a certain time.

188. Treaties made for the king and his successors.

189. Treaties made for the good of the kingdom.

190. How presumption ought to be founded in doubtful cases.

191. The obligations and rights resulting from a real treaty pass to the successors.

192. Treaties accomplished once for all, and perfected.

193. Treaties already accomplished on the one part.

194. The personal alliance expires if one of the parties ceases to reign.

195. Treaties in their own nature personal.

196. Alliance concluded for the defence of the king and royal family.

197. Obligation of a real alliance, when the allied king is deposed.


CHAP. XIII. Of the Dissolution and Renewal of Treaties.

198. Expiration of alliances made for a limited time.

199. Renewal of treaties.

200. How a treaty is dissolved, when violated by one of the contracting parties.

201. The violation of one treaty does not cancel another.

202. The violation of one article in a treaty may cancel the whole.

203. The treaty is void by the destruction of one of the contracting powers.

204. Alliances of a state that has afterwards put herself under the protection of another.

205. Treaties dissolved by mutual consent.


CHAP. XIV. Of other public Conventions, — of those that are made by Subordinate Powers, — particularly of the Agreement called in Latin, Sponsio, — and of Conventions between the Sovereign and Private Persons.

206. Conventions made by sovereigns.

207. Those made by subordinate powers.

208. Treaties concluded by a public person, without orders from the sovereign, or without sufficient powers.

209. The agreement called sponsio.

210. The state is not bound by such an agreement.

211. To what the promiser is bound when it is disavowed.

212. To what the sovereign is bound.

213. Private contracts of the sovereign.

214. Contracts made by him with private persons, in the name of the state.

215. They are binding on the nation, and on his successors.

216. Debts of the sovereign and the state.

217. Donations of the sovereign.


CHAP. XV. Of the Faith of Treaties.

218. What is sacred among nations.

219. Treaties sacred between nations.

220. The faith of treaties is sacred.

221. He who violates his treaties, violates the law of nations.

222 Right of nations against him who disregards the faith of treaties.

223. The law of nations violated by the popes.

224. This abuse authorized by princes.

225. Use of an oath in treaties. — It does not constitute the obligation.

226. It does not change the nature of obligations.

227. It gives no pre-eminence to one treaty above another.

228. It cannot give force to a treaty that is invalid.

229. Asseverations.

230. The faith of treaties does not depend on the difference of religion.

231. Precaution to be taken in wording treaties.

232. Subterfuges in treaties.

233. An evidently false interpretation inconsistent with the faith of treaties.

234. Faith tacitly pledged.


CHAP. XVI. Of Securities given for the Observance of Treaties.

235. Guaranty.

236. It gives the guarantee no right to interfere unasked in the execution of a treaty.

237. Nature of the obligation it imposes.

238. The guaranty cannot impair the rights of a third parly.

239. The duration of the guaranty.

240. Treaties with surety.

241. Pawns, securities, and mortgages.

242. A nation's right over what she holds as a pledge.

243. How she is obliged to restore it.

244. How she may appropriate it to herself.

245. Hostages.

246. What right we have over hostages.

247. Their liberty alone is pledged.

248. When they are to be sent back.

249. Whether they may be detained on any other account.

250. They may be detained for their own actions.

251. Of the support of hostages.

252. A subject cannot refuse to be a hostage.

253. Rank of the hostages.

254. They ought not to make their escape.

255. Whether a hostage who dies is to be replaced.

256. Substitute for a hostage.

257. Hostage succeeding to the crown.

258. The liability of the hostage ends with the treaty.

259. The violation of the treaty is an injury done to the hostages

260. The fate of the hostage when he who has given him fails in his engagements.

261. Right founded on custom.


CHAP. XVII. Of the Interpretation of Treaties.

262. Necessity of establishing rules of interpretation.

263. First general maxim — it is not allowable to interpret what has no need of interpretation.

264. Second general maxim — if he who could and ought to have explained himself, has not done it, it is to his own detriment.

265. Third general maxim — neither of the contracting parties has a right to interpret the treaty according to his own fancy.

266. Fourth general maxim — what is sufficiently declared is to be taken for true.

267. We ought to attend rather to the words of the person promising, than to those of the party stipulating.

268. Fifth general maxim — the interpretation ought to be made according to certain rules.

269. The faith of treaties imposes an obligation to follow those rules.

270. General rule of interpretation.

271. The terms are to be explained conformably to common usage.

272. Interpretation of ancient treaties.

273. Quibbles on words.

274. A rule on that subject.

275. Mental reservations.

276. Interpretation of technical terms.

277. Terms whose signification admits of degrees.

278. Figurative expressions.

279. Equivocal expressions.

280. The rule for these two cases.

281. Not necessary to give a term the same sense everywhere in the same deed.

282. We ought to reject every interpretation which leads to an absurdity.

283. ——— or which renders the act null and void of effect.

284. Obscure expressions interpreted by others more clear in the same author.

285. Interpretation founded on the connection of the discourse.

286. Interpretation drawn from the connection and relation of the things themselves.

287. Interpretation founded on the reason of the deed.

288. Where many reasons have concurred to determine the will.

289. What constitutes a sufficient reason for an act of the will.

290. Extensive interpretation founded on the reason of the act.

291. Frauds tending to elude laws or promises.

292. Restrictive interpretation.

293. Us use, in order to avoid falling into absurdities, or into what is unlawful.

294. —— or what is too severe and burthensome.

295. How it ought to restrict the signification agreeably to the subject.

296. How a change happening in the state of things may form an exception.

297. Interpretation of a deed in unforeseen cases.

298. Reasons arising from the possibility, and not the existence of a thing.

299. Expressions susceptible of an extensive and a limited sense.

300. Things favourable, and things odious.

301. What tends to the common advantage, and to equality, is favourable: bre [ words missing ?] contrary is odious.

302. What is useful to human society, is favourable: the contrary is odious.

303. Whatever contains a penalty is odious.

304. Whatever renders a deed void is odious.

305. Whatever tends to change the present state of things, is odious, the contrary is favourable.

306. Things of a mixed nature.

307. Interpretation of favourable things.

308. Interpretation of odious things.

309. Examples.

310. How we ought to interpret deeds of pure liberality.

311. Collison of laws or treaties.

312. First rule in cases of collison.

313. Second rule.

314. Third rule.

315. Fourth rule.

316. Fifth rule.

317. Sixth rule.

318. Seventh rule.

319. Eighth rule.

320. Ninth rule.

321. Tenth rule.

322. General remark on the manner of observing all the preceding rules.


CHAP. XVIII. Of the Mode of Terminating Deputes between Nations.

323. General direction on this subject.

324. Every nation is bound to give satisfaction respecting the just complaints of another.

325. How nations may abandon their rights and just complaints.

326. Means suggested by the law of nature for terminating their disputes: amicable accommodation.

327. Compromise.

328. Mediation.

329. Arbitration.

330. Conferences and congresses.

331. Distinction to be made between evident and doubtful cases.

332. Essential rights, and those of less importance.

333. How we acquire a right of recurring to force in a doubtful case.

334. ——— and even without attempting other measures.

335. Voluntary law of nations on that subject.

336. Equitable conditions to be offered.

337. Possessor's right in doubtful cases.

338. How reparation of an injury is to be sought.

339. Retaliation.

340. Various modes of punishing, without having recourse to arms.

341. Retortion.

342. Reprisals.

343. What is required to render them lawful.

344. Upon what effects reprisals are made.

345. The state is bound to compensate those who suffer by reprisals.

346. The sovereign alone can order reprisals.

347. Reprisals against a nation for actions of her subjects, and in favour of the injured subjects.

348. ———— but not in favour of foreigners.

349. Those who have given cause for reprisals are bound to indemnify those who suffer by them.

350. What may be deemed a refusal to do justice.

351. Subjects arrested by way of reprisals.

352. Our right against those who oppose reprisals.

353. Just reprisals do not afford a just cause for war.

354. How we ought to confine ourselves to reprisals, or at length proceed to hostilities.



The LAW OF NATIONS

BOOK II.

OF A NATION CONSIDERED IN
ITS RELATION TO OTHERS

CHAP. I.

OF THE COMMON DUTIES OF A NATION TOWARDS OTHERS;
OR, OF THE OFFICES OF HUMANITY BETWEEN NATIONS.

§ 1. Foundation of the common and mutual duties of nations.

THE following maxims will appear very strange to cabinet politicians; and such is the misfortune of mankind, that, to many of those refined conductors of nations, the doctrine of this chapter will be a subject of ridicule. Be it so; but we will, nevertheless, boldy lay down what the law of nature prescribes to nations. Shall we be intimidated by ridicule, when we speak after Cicero? That great man held the reins of the most powerful state that ever existed; and in that station he appeared no less eminent than at the bar. The punctual observance of the law of nature he considered as the most salutary policy to the state. In my preface, I have already quoted this fine passage — Nihil est quod adhuc de republica putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuria not posse, sed hoc verissimum, sine summa justitia rempublicam regi non posse.1 I might say on good grounds, that, by the words summa justitia, Cicero means that universal justice which consists in completely fulfilling the law of nature. But in another place he explains himself more clearly on this head, and gives us sufficiently to understand that he does not confine the mutual duties of men to the observance of justice, properly so called. "Nothing," says he, "is more agreeable to nature, more capable of affording true satisfaction, than, in imitation of Hercules, to undertake even the most arduous and painful labours for the benefit and preservation of all nations." Magis est secundum naturam, pro omnibus gentibus, si fieri possit, conservandis aut juvandis, maximos labores molestiasque suscipere, imitantem Herculem illum, quem hominum fama, beneficiorum memor, in concilium cœlestium collocavit, quam vivere in solitudine, non modo sine ullis molestiis, sed, etiam in maximis voluptatibus, abundantem omnibus copiis, ut excellas etiam pulchritudine et viribus. Quocirca optimo quisque et splendidissimo ingenio longe illam vitam huic anteponit.2 In the same chapter, Cicero expressly refutes those who are for excluding foreigners from the benefit of those duties to which they acknowledge themselves bound towards their fellow-citizens. Qui autem civium rationem dicunt habendam, externorum negant, hi dirimunt communem humani generis societatem; qua sublata, beneficentia, liberalitas, bonitas, justitia, funditus tollitur; quæ qui tollunt, etiam adversus Deos immortales impii judicandi sunt; ab Us enim constitutam inter homines societatem evertunt.

And why should we not hope still to find, among those who are the head of affairs, come wise individuals who are convinced of this great truth, that virtue is, even for sovereigns and political bodies, the most certain road to prosperity and happiness? There is at least one benefit to be expected from the open assertion and publication of sound maxims, which is, that even those who relish them the least are thereby laid under a necessity of keeping within some bounds, lest they should forfeit their characters altogether. To flatter ourselves with the vain expectation that men, and especially men in power, will be inclined strictly to conform to the laws of nature, would be a gross mistake; and to renounce all hope of making impression on some of them, would be to give up mankind for lost.

Nations, being obliged by nature reciprocally to cultivate human society (Prelim. § 11), are bound to observe towards each other all the duties which the safety and advantage of that society require.

§ 2. Offices of humanity, and their foundation.

The offices of humanity are those succours, those duties, which men owe to each other, as men, — that is, as social beings formed to live in society, and standing in need of mutual assistance for their preservation and happiness, and to enable them to live in a manner conformable to their nature. Now, the laws of nature being no less obligatory on nations than on individuals (Prelim. § 5), whatever duties each man owes to other men, the same does each nation, in its way, owe to other nations (Prelim. § 10, &c). Such is the foundation of those common duties — of those offices of humanity — to which nations are reciprocally bound towards each other. They consist, generally, in doing every thing in our power for the preservation and happiness of others, as far as such conduct is reconcilable with our duties towards ourselves.

§ 3. General principle of all the mutual duties of nations.

The nature and essence of man, who, without the assistance of his fellow-men, is unable to supply all his wants, to preserve himself, to render himself perfect, and to live happily, plainly show us that he is destined to live in society, in the interchange of mutual aid; and, consequently, that all men are, by their very nature and essence, obliged to unite their common efforts for the perfection of their own being and that of their condition. The surest method of succeeding in this pursuit is, that each individual should exert his efforts first for himself and then for others. Hence it follows, that, whatever we owe to ourselves, we likewise owe to others, so far as they stand in need of assistance, and we can grant it to them without being wanting to ourselves. Since, then, one nation, in its way, owes to another nation every duty that one man owes to another man, we may confidently lay down this general principle: — one state owes to another state whatever it owes to itself, so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself. Such is the eternal and immutable law of nature. Those who might be alarmed at this doctrine, as totally subversive of the maxims of sound policy, will be relieved from their apprehensions by the two following considerations: —

1. Social bodies or sovereign states are much more capable of supplying all their wants than individual men are; and mutual assistance is not so necessary among them, nor so frequently required. Now, in those particulars which a nation can itself perform, no succour is due to it from others.

2. The duties of a nation towards itself, and chiefly the care of its own safety, require much more circumspection and reserve than need be observed by an individual in giving assistance to others. This remark we shall soon illustrate.

§ 4. Duties of a nation for the preservation of others.

Of all the duties of a nation towards itself, the chief object is its preservation and perfection, together with that of its state. The detail given of them in the first book of this work may serve to point out the several objects in relation to which a state may and should assist another state. Every nation ought, on occasion, to labour for the preservation of others, and for securing them from ruin and destruction, as far as it can do this without exposing itself too much. Thus, when a neighbouring nation is unjustly attacked by a powerful enemy who threatens to oppress it, if you can defend it, without exposing yourself to great danger, unquestionably it is your duty to do so. Let it not be said, in objection to this, that a sovereign is not to expose the lives of his soldiers for the safety of a foreign nation with which he has not contracted a defensive alliance. It may be his own case to stand in need of assistance; and, consequently, he is acting for the safety of his own nation in giving energy to the spirit and disposition to afford mutual aid. Accordingly, policy here coincides with and enforces obligation and duty. It is the interest of princes to stop the progress of an ambitious monarch, who aims at aggrandizing himself by subjugating his neighbours. A powerful league was formed in favour of the United Provinces, when threatened with the yoke of Louis XIV.3 When the Turks laid siege to Vienna, the brave Sobieski, king of Poland, saved the house of Austria.4 and possibly all Germany, and his own kingdom.

§ 5. It ought to assist a nation afflicted with famine or any other calamities.

For the same reason, if a nation is afflicted with famine, all those who have provisions to spare ought to relieve her distress, without, however, exposing themselves to want.(89) But, if that nation is able to pay for the provisions thus furnished, it is perfectly lawful to sell them to her at a reasonable rate; for they are not bound to furnish her with what she is herself capable of procuring; and, consequently, there is no obligation of gratuitously bestowing on her such things as she is able to purchase. To give assistance in such extreme necessity is so essentially conformable to humanity, that the duty is seldom neglected by any nation that has received the slightest polish of civilization. The great Henry the Fourth could not forbear to comply with it in favour of obstinate rebels who were bent on his destruction.5

Whatever be the calamity with which a nation is afflicted, the like assistance is due to it. We have seen little states in Switzerland order public collections to be made in behalf of towns or villages of the neighbouring countries, which had been ruined by fire, and remit them liberal succours; the difference of religion proving no bar to the performance of so humane a deed. The calamities of Portugal have given England an opportunity of fulfilling the duties of humanity with that noble generosity which characterizes a great nation. On the first intelligence of the disastrous fate of Lisbon,6 the parliament voted a hundred thousand pounds sterling for the relief of an unfortunate people; the king also added considerable sums: ships, laden with provisions and all kinds of succours, were sent away with the utmost despatch; and their arrival convinced the Portuguese that an opposition in belief and worship does not restrain the beneficence of those who understand the claims of humanity. On the same occasion, likewise, the king of Spain signally displayed his tenderness for a near ally, and exerted, in a conspicuous manner, his humanity and generosity.

§ 6. It ought to contribute to the perfection of other states.

A nation must not simply confine itself to the preservation of other states; it should likewise, according to its power and their want of its assistance, contribute to their perfection. We have already shown (Prelim. § 13) that natural society imposes on it this general obligation. We are now come to the proper place for treating of the obligation somewhat more in detail. A state is more or less perfect, as it is more or less adapted to attain the end of civil society, which consists in procuring for its members every thing of which they stand in need, for the necessities, the conveniences, and enjoyments of life, and for their happiness in general, — in providing for the peaceable enjoyment of property, and the safe and easy administration of justice, — and, finally, in defending itself against all foreign violence (Book I. § 15). Every nation therefore, should occasionally, and according to its power, contribute, not only to put another nation in possession of these advantages, but likewise to render it capable of procuring them itself. Accordingly, a learned nation, if applied to for masters and teachers in the sciences, by another nation desirous of shaking off it native barbarism, ought not to refuse such a request. A nation, whose happiness it is to live under wise laws, should on occasion, make it a point of duty to communicate them. Thus, when the wise and virtuous Romans sent ambassadors to Greece to collect good laws, the Greeks were far from rejecting so reasonable and so laudable a request. (90)

§ 7. But not by force.

But, though a nation be obliged to promote, as far as lies in its power, the perfection of others, it is not entitled forcibly to obtrude these good offices on them. Such an attempt would be a violation of their natural liberty. In order to compel any one to receive a kindness, we must have an authority over him; but nations are absolutely free and independent (Prelim. § 4). Those ambitious Europeans who atlacked the American nations, and subjected them to their greedy dominion, in order, as they pretended, to civilize them, and cause them to be instructed in the true religion, — those usurpers, I say, grounded themselves on a pretext equally unjust and ridiculous. It is strange to hear the learned and judicious Grotius assert that a sovereign may justly take up arms to chastise nations which are guilty of enormous transgressions of the law of nature, which treat their parents with inhumanity like the Sogdians, which eat human flesh as the ancient Gauls, &c.7(91) What led him into this error, was, his attributing to every independent man, and of course to every sovereign, an odd kind of right to punish faults which involve an enormous violation of the laws of nature, though they do not affect either his rights or his safety. But we have shown (Book I. § 169) that men derive the right of punishment solely from their right to provide for their own safety; and consequently they cannot claim it except against those by whom they have been injured. Could it escape Grotius, that, notwithstanding all the precautions added by him in the following paragraphs, his opinion opens a door to all the ravages of enthusiasm and fanaticism, and furnishes ambition with numberless pretexts? Mohammed and his successors have desolated and subdued Asia, to avenge the indignity done to the unity of the Godhead; all whom they termed associators or idolaters fell victims to their devout fury.

§ 8. The right to require the offices of humanity.

Since nations ought to perform these duties or offices of humanity towards each other, according as one stands in need, and the other can reasonably comply with them, — every nation being free, independent, and sole arbitress of her own actions, it belongs to each to consider whether her situation warrants her in asking or granting any thing on this head. Thus 1. Every nation has a perfect right to ask of another that assistance and those kind offices which she conceives herself to stand in need of. To prevent her, would be doing her an injury. If she makes the application without necessity, she is guilty of a breach of duty; but, in this respect, she is wholly independent of the judgment of others. A nation has a right to ask for these kind offices, but not to demand them.

§ 9. The right of judging whether they are to be granted.

For, 2. These offices being due only in necessity, and by a nation which can comply with them without being wanting to itself; the nation that is applied to has, on the other hand, a right of judging whether the case really demands them, and whether circumstances will allow her to grant them consistently with that regard which she ought to pay to her own safety and interests: for instance, a nation is in want of corn, and applies to another nation to sell her a quantity of it: — in this case it rests with the latter party to judge whether, by a compliance with the request, they will not expose themselves to the danger of a scarcity: and, if they refuse to comply, their determination is to be patienty acquiesced in. We have very lately seen a prudent performance of this duty on the part of Russia: she generously assisted Sweden when threatened with a famine, but refused to other powers the liberty of purchasing corn in Livonia, from the circumstance of standing herself in need of it, and, no doubt, from weighty political motives likewise.

§ 10. A nation is not to compel another to perform these.

Thus, the right which a nation has to the offices of humanity is but an imperfect one: she cannot compel another nation to the performance of them. The nation that unreasonably refuses them offends against equity, which consists in acting conformably to the imperfect right of another: but thereby no injury is done; injury or injustice being a trespass against the perfect right of another.

§ 11. Mutual love of nations.

It is impossible that nations should mutually discharge all these several duties if they do not love each other. This is the pure source from which the offices of humanity should proceed; they will retain the character and perfection of it. Then nations will be seen sincerely and cheerfully to help each other, earnestly to promote their common welfare, and cultivate peace, without jealousy or distrust.

§ 12. Each nation ought to cultivate the friendship of others.

A real friendship will be seen to reign among them; and this happy state consists in a mutual affection, Every nation is obliged to cultivate the friendship of other nations, and carefully to avoid whatever might kindle their enmity against her. Wise and prudent nations often pursue this line of conduct from views of direct and present interest: a more noble, more general, and less direct interest, is too rarely the motive of politicians. If it be incontestable that men must love each other in order to answer the views of nature and discharge the duties which she prescribes them, as well as for their own private advantage, — can it be doubted that nations are under the like reciprocal obligation? Is it in the power of men, on dividing themselves into different political bodies, to break the ties of that universal society which nature has established amongst them?

§ 13. To perfect itself with a view to the advantage of others, and set them good examples.

If a man ought to qualify himself for becoming useful to other men, — and a citizen, for rendering useful services to his country and fellow citizens, a nation likewise, in perfecting herself, ought to have in view the acquisition of a greater degree of ability to promote the perfection and happiness of other nations; she should be careful to set them good examples, and avoid setting them a pattern of any thing evil. Imitation is natural to mankind: the virtues of a celebrated nation are sometimes imitated, and much more frequently its vices and defects.

§ 14. To take care of their glory.

Glory being a possession of great importance to a nation, as we have shown in a particular chapter expressly devoted to the subject,8 — the duty of a nation extends even to the care of the glory of other nations. In the first place, she should, on occasion, contribute to enable them to merit true glory: secondly, she should do them in this respect all the justice due to them, and use all proper endeavours that such justice be universally done them: finally, instead of irritating, she should kindly extenuate the bad effect which some slight blemishes may produce.

§ 15. Difference of religion.

From the manner in which we have established the obligation of performing the offices of humanity, it plainly appears to be solely founded on the nature of man. Wherefore, no nation can refuse them to another, under pretence of its professing a different religion; to be entitled to them, it is sufficient that the claimant is our fellow-creature, A conformity of belief and worship may become a new tie of friendship between nations: but no difference in these respects can warrant us in laying aside the character of men, or the sentiments annexed to it. As we have already related (§ 5) some instances well worthy of imitation, let us here do justice to the pontiff who at present fills the see of Rome, and has recently given a very remarkable example, and which cannot be loo highly commended. Information being given to that prince, that several Dutch ships remained at Civita Vecchia, not daring to put to sea for fear of the Algerine corsairs, he immediately issued orders that the frigates of the ecclesiastical state should convoy those ships out of danger; and his nuncio at Brussels received instructions to signify to the ministers of the states-general, that his holiness made it a rule to protect commerce and perform the duties of humanity, without regarding any difference of religion. Such exalted sentiments cannot fail of raising a veneration for Benedict XIV. even amongst Protestants.(92)

§ 16. Rule and measure of the offices of humanity.

How happy would mankind be, were these amiable precepts of nature everywhere observed! Nations would communicate to each other their products and their knowledge; a profound peace would prevail all over the earth, and enrich it with its invaluable fruits; industry, the sciences and the arts would be employed in promoting our happiness, no less than in relieving our wants; violent methods of deciding contests would be no more heard of; all differences would be terminated by moderation, justice, and equity; the world would have the appearance of a large republic; men would live everywhere like brothers, and each individual be a citizen of the universe. That this idea should be but a delightful dream! yet it flows from the nature and essence of man.9 Put disorderly passions, and private and mistaken interest, will for ever prevent its being realized. Let us then, consider what limitations the present state of men, and the ordinary maxims and conduct of nations, may render necessary in the practice of these precepts of nature, which are in themselves so noble and excellent.

The law of nature cannot condemn the good to become the dupes and prey of the wicked, and the victims of their injustice and ingratitude. Melancholy experience shows that most nations aim only to strengthen and enrich themselves at the expense of others, — to domineer over them, and even if an opportunity offers, to oppress and bring them under the yoke. Prudence does not allow us to strengthen an enemy,(93) or one in whom we discover a desire of plundering and oppressing us: and the care of our own safety forbids it. We have seen (§ 3, &c.) that a nation does not owe her assistance and the offices of humanity to other nations, except so far as the grant of them is reconcilable with her duties to herself. Hence, it evidently follows, that, though the universal love of mankind obliges us to grant at all times, and to all, even to our enemies, those offices which can only tend to render them more moderate and virtuous, because no inconvenience is to be apprehended from granting them, — we are not obliged to give them such succours as probably may become destructive to ourselves. Thus, 1. The exceeding importance of trade, not only to the wants and conveniences of life, but likewise to the strength of a state, and furnishing it with the means of defending itself against its enemies, — and the insatiable avidity of those nations which seek wholly and exclusively to engross it, — thus, I say, these circumstances authorize a nation possessed of a branch of trade, or the secret of some important manufacture or fabric, to reserve to herself those sources of wealth, and, instead of communicating them to foreign nations, to take measure against it. But, where the necessaries or conveniences of life are in question, the nation ought to sell them to others at a reasonable price, and not convert her monopoly into a system of odious extortion. To commerce England chiefly owes her greatness, her power, and her safety: who, then, will presume to blame her for endeavouring, by every fair and just method, to retain the several branches of it in her own hand?

2. As to things directly and more particularly useful for war, a nation is under no obligation to sell them to others of whom it has the smallest suspicion; and prudence even declares against it. Thus, by the Roman laws, people were very justly prohibited to instruct the barbarous nations in building galleys. Thus, in England, laws have been enacted to prevent the best method of ship-building from being carried out of the kingdom.

This caution is to be carried farther, with respect to nations more justly suspected. Thus, when the Turks were successfully pursuing their victorious career, and rapidly advancing to the zenith of power, all Christian nations ought, independent of every bigoted consideration, to have considered them as enemies; even the most distant of those nations, though not engaged in any contest with them, would have been justifiable in breaking off all commerce with a people who made it their profession to subdue by force of arms all who would not acknowledge the authority of their prophet.

§ 17. Particular limitation with regard to the prince.

Let us further observe, with regard to the prince in particular, that he ought not, in affairs of this nature, to obey without reserve all the suggestions of a noble and generous heart impelling him to sacrifice his own interests to the advantage of others, or to motives of generosity; because it is not his private interest that is in question, but that of the state — that of the nation who has committed herself to his care. Cicero says that a great and elevated soul despises pleasures, wealth, life itself, and makes no account of them, when the common utility is at stake.10 He is right, and such sentiments are to be admired in a private person; but generosity is not to be exerted at the expense of others. The head or conductor of a nation ought not to practise that virtue in public affairs without great circumspection, nor to a greater extent than will redound to the glory and real advantage of the state. As to the common good of human society, he ought to pay the same attention to it as the nation he represents would be obliged to pay were the government of her affairs in her own hand.

§ 18. No nation ought to injure others.

But, though the duties of a nation towards herself set bounds to the obligation of performing the offices of humanity, they cannot in the least affect the prohibition of doing any harm to others, of causing them any prejudice, — in a word, of injuring them 11.... If every man is, by his very nature, obliged to assist in promoting the perfection of others, much more cogent are the reasons which forbid him to increase their imperfection, and that of their condition. The same duties are incumbent on nations (Prelim. §§ 5, 6). No nation, therefore, ought to commit any actions tending to impair the perfection of other nations, and that of their condition, or to impede their progress, — in other words, to injure them.(94) And, since the perfection of a nation consists in her aptitude to attain the end of civil society — and the perfection of her condition, in not wanting any of the things necessary to that end (Book I. § 14) — no one nation ought to hinder another from attaining the end of civil society, or to render her incapable of attaining it. This general principle forbids nations to practise any evil manœuvres tending to create disturbance in another state, to foment discord, to corrupt its citizens, to alienate its allies, to raise enemies against it, to tarnish its glory, and to deprive it of its natural advantages.(95)

However, it will be easily conceived that negligence in fulfilling the common duties of humanity, and even the refusal of these duties or offices, is not an injury. To neglect or refuse contributing to the perfection of a nation, is not impairing that perfection.

It must be further observed, that, when we are making use of our right, when we are doing what we owe to ourselves or to others, if, from this action of ours, any prejudice results to the perfection of another, — any detriment to his exterior condition, — we are not guilty of an injury we are doing what is lawful, or even what we ought to do. The damage which accrues to the other is no part of our intention: it is merely an accident, the imputability of which must be determined by the particular circumstances. For instance, in case of a lawful defence, the harm we do to the aggressor is not the object we aim at; — we act only with a view to our own safety; we make use of our right; and the aggressor alone is chargeable with the mischief which he brings on himself.

§ 19. Offences.

Nothing is more opposite to the duties of humanity, nor more contrary to that society which should be cultivated by nations, than offences, or actions which give a just displeasure to others: every nation therefore should carefully avoid giving any other nation real offence: I say real; for, should others take offence at our behaviour when we are only using our rights or fulfilling our duties, the fault lies with them, not with us. Offences excite such asperity and rancour between nations that we should avoid giving any room even for ill-grounded piques, when it can be done without any inconveniency, or failure in our duty. It is said that certain medals and dull jests irritated Louis XIV. against the United Provinces to such a degree as to induce him, in 1672, to undertake the destruction of that republic.(96)

§ 20. Bad customs of the ancients.

The maxims laid down in this chapter, — those sacred precepts of nature, — were for a long time unknown to nations. The ancients had no notion of any duty they owed to nations with whom they were not united by treaties of friendship.12 The Jews especially placed a great part of their zeal in hating all nations; and, as a natural consequence, they were detested and despised by them in turn. At length the voice of nature came to be heard among civilized nations; they perceived that all men are brethren.13 When will the happy time come that they shall behave as such?


1. Fragm. ex. lib. ii. De Republica.

2. De Officiis, lib. iii. cap. 5

3. In 1672.

4. He defeated the Turks, and obliged them to raise the siege of Vienna, in 1683.

(89) Ante. Prelim. § 14. Upon this principle, during the late war with France, when the French troops were extensively afflicted with a disorder which would have occasioned more destruction than the most disastrous defeat in battle, England supplied them with Peruvian bark, which instantly checked and overcame the disease. — C.

5. At the famous siege of Paris.

6. The earthquake by which a great part of that city was destroyed.

(90) See the conduct of Charlemagne and Alfred the Great. Hume Hist. The ancient policy was to withhold any communication or information in improvements which might diminish our home manufactures; but the restrictions upon the exportations of artificers and machinery were removed by 5 Geo. 4, c. 97. If there be reciprocity on the part of the other nation, the indulgence of this liberal policy must be desirable; but otherwise it requires prudential checks. — C.

7. De Jure Belli et Pacis, lib. ii. cap. xx. § 11.

(91) And see the absurdity of such interference sarcastically well exemplified by Cervantes in his Don Quixote, releasing the refractory apprentice and compelling his master to beg pardon, thereby occasioning the former an infinitely more severe chastisement. — C.

8. Book I. chap. xv.

(92) He was much celebrated and spoken of in Lord Charlemont's Travels in A.D. 1742. — C.

9. Here, again, let us call in the authority of Cicero to our support. "All mankind (says that excellent philosopher) should lay it down as their constant rule of action, that individual and general advantage should be the same: for, if each man strives to grasp every advantage for himself, all the ties of human society will be broken. And, if nature ordains that man should feel interested in the welfare of his fellow-man, whoever he be, and for the single reason that he is a man, — it necessarily follows, that, according to the intentions of nature, all mankind must have one common interest. — Ergo unum debet esse omnibus propositum, ut eadem sit utilitas uniuscujusque et universorum: quam si ad se quisque raplat, dissolvetur omnis humana consociatio. Atque si etiam hoc natura præscribit, ut homo homini, quicunque sit, ob eam ipsam causam, quod is homo sit, consultum velit, necesse est, secundum eandem naturam, omnium utilitatem esse communem. De Offic. lib. iii. cap. iv. Note Ed. 1797.

(93) The same prudential consideration extends also in time of peace; for, who can anticipate how soon after advantages have been conferred or granted without equivalent to another state, she may declare war against the nation who conferred them? — C.

10. De Offic. lib. iii. cap. v.

11. Lézer (professedly borrowed from the Latin lædo) is the term used by the author, who, in order the better to explain his meaning, proceeds to inform us, that "nuire (to hurt), offenser (to offend), faire tort (to wrong), porter dommage (to cause detriment), porter prejudice (to prejudice), blesser (to wound, or hurt), are not of precisely the same import," and that, by the word lézer (which is here rendered injure) he means, "in general, causing imperfection in the injured party, or in his condition — rendering his person or his condition less perfect."

(94) This position, however, requires qualification; for, whether in time of peace or of war, a nation has a right to diminish the commerce or resources of another by fair rivalry and other means not in themselves unjust, precisely as one tradesman may by fair competition undersell his neighbour, and thereby alienate his customers. — C.

(95) An instance of this rule, is, the illegality of any commercial intercourse with a revolted colony before its separate independence has been acknowledged. A contract made between a revolted colony in that character with the subject of another state that has not as yet recognised such revolted colony as an independent state, is illegal and void, and will not be given effect to by the Court of Chancery, or any other court in this country. City of Berne v. Bank of England, 9 Ves. 347; Jones v. Garcia del Rio, 1 Turner & Russ. 297; Thompson v. Powles. 2 Sim. Rep. 202, 3; Yrisarri v. Clement, 11 Moore, 308; 2 Car. & P. 223; 3 Bing. 432; for such direct recognition of such a revolted colony must necessarily be offensive to the principal state to which it belonged; and, in the American war, Great Britain declared war against France and other countries on the ground of their improper interference between her and her colonies, Thompson v. Powles, 2 Sim. Rep. 203, 212, 3, and in Biré v. Thompson, cited id. and id. 222, Lord Eldon refused to lake notice of the Republic of Colombia; and it seems that, if a bill inequity falsely state that the colony had been recognised as an independent state, the court may take judicial notice of the contrary, and decree or proceed accordingly; and the mere fact of this country having for commercial purposes sent a consul to a revolted colony, is not equivalent to a state recognition of its independence: Taylor v. Barclay, 2 Sim. 213, and Yrisarri v. Clement, 11 Moore. 306; 2 Can. & P. 223; 3 Bing. 432, cited id. 219; {The United States v. Palmer, 3 Wheat. Rep. 610.}

To supply such a revolted colony (or even any independent state) with money, without leave of the government to which a subject belongs, is illegal, because that would be assisting such colony against the parent country to which it belongs; and also because it would create objects and interests on the part of the subject that might in case of war be injurious to his own government. Observations in Thompson v, Powles, 2 Sim. Rep. 203, and Hennings v. Rothschild, 12 Moore, 559; 4 Bing. 315,335; 9 Bar. & Cres. 470; Yrisarri v. Clement. 11 Moore, 308; 2 Car. & P. 223; 3 Bing. 432. {See The Santissima Trinidada, 7 Wheat Rep. 283.}

(96) On this ground it was held that the publication in England of a libel upon Bonaparte, then first consul of the French republic, was an indictable offence, as calculated to stir up animosity between him and the citizens of the republic, and to create discord between our king and people and said Bonaparte and said republic. Information against Peltier filed in Crown Office, K.B., in Michaelmas Term, 43 Geo. 3-1 Camp. 352, {Adam's Rep. of Peltier's Trial. Lond. 1803.} So Lord Hawkesbury laid it down to be clear "that a foreign power has a right to apply to foreign courts of judicature and obtain redress for defamation or calumny" 6 Russell's Modern Europe, 20, and see post, page 173, end of note; and see 1 Chit. Commercial L. 74. — C.

12. To the example of the Romans may be added that of the English in former days, — since, on the occasion of a navigator being accused of having committed some depredations on the natives of India. "this act of injustice" (according to Grotius) "was not without advocates who maintained, that, by ancient laws of England, crimes committed against foreign nations with whom there existed no public treaty of alliance, were not punishable in that kingdom." — History of the Disturbances in the Low Countries, book xvi.

13. See § 1, a fine passage of Cicero.


The LAW OF NATIONS - BOOK II.

CHAP. II.

OF THE MUTUAL COMMERCE BETWEEN NATIONS.

§ 21. General obligation of nations to carry on mutual commerce.

ALL men ought to find on earth the things they stand in need of. In the primitive state of communion, they took them wherever they happened to meet with them, if another had not before appropriated them to his own use. The introduction of dominion and property could not deprive men of so essential a right; and, consequently it cannot take place without leaving them, in general, some mean of procuring what is useful or necessary to them. This mean is commerce; by it every man may still supply his wants. Things being now become property, there is no obtaining them without the owner's consent, nor are they usually to be had for nothing; but they may be bought, or exchanged for other things of equal value. Men are, therefore, under an obligation to carry on that commerce with each other, if they wish not to deviate from the views of nature, and this obligation extends also to whole nations or states (Prelim. § 5). It is seldom that nature is seen in one place to produce every thing necessary for the use of man; one country abounds in corn, another in pastures and cattle, a third in timber and metals, &c. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary; and the views of nature, our common mother, will be fulfilled. Further, one country is fitter for some kind of products than another, as, for instance, fitter for the vine than for tillage. If trade and barter take place, every nation, on the certainly of procuring what it wants, will employ its land and its industry in the most advantageous manner, and mankind in general prove gainers by it. Such are the foundations of the general obligation incumbent on nations reciprocally to cultivate commerce.(97)

§ 22. They should favour trade.

Every nation ought, therefore, not only to countenance trade, as far as it reasonably can, but even to protect and favour it. The care of the public roads, the safety of travellers, the establishment of ports, of places of sale, of well-regulated fairs, all contribute to this end. And, where these are attended with expense, the nation, as we have already observed (Book I, § 103), may, by tolls and other duties equitably proportioned, indemnify itself for its disbursements.

§ 23. Freedom of trade.

Freedom being very favourable to commerce, it is implied, in the duties of nations, that they should support it as far as possible, instead of cramping it by unnecessary burdens or restrictions. Wherefore, those private privileges and tolls, which obtain in many places, and press so heavily on commerce, are deservedly to be reprobated, unless founded on very important reasons arising from the public good.

§ 24. Right of trading belonging to nations.

Every nation, in virtue of her natural liberty, has a right to trade with those who are willing to correspond with such intentions; and to molest her in the exercise of her right is doing her an injury.(98) The Portuguese, at the time of their great power in the East Indies, were for excluding all other European nations from any commerce with the Indians; but such a pretension, no less iniquitous than chimerical, was treated with contempt; and the other nations agreed to consider any acts of violence in support of it, as just grounds for making war against the Portuguese. This common right of all nations is, at present, generally acknowledged under the appellation of freedom of trade.

§ 25. Each nation is sole judge of the propriety of commerce on her own part.

But, although it be in general the duty of a nation to carry on commerce with others, and, though each nation has a right to trade with those countries that are willing to encourage her — on the other hand, a nation ought to decline a commerce which is disadvantageous or dangerous (Book 1, § 98); and since, in case of collision, her duties to herself are paramount to her duties to others, she has a full and clear right to regulate her conduct, in this respect, by the consideration of what her advantage or safety requires. We have already seen (Book I. § 92), that each nation is, on her own part, the sole judge whether or not it be convenient for her to cultivate such or such branch of commerce. She may, therefore, either embrace or reject any commercial proposals from foreign nations, without affording them any just grounds to accuse her of injustice, or to demand a reason for such refusal, much less to make use of compulsion. She is free in the administration of her affairs, without being accountable to any other. The obligation of trading with other nations is in itself an imperfect obligation (Prelim. § 17), and gives them only an imperfect right; so that, in cases where the commerce would be detrimental, that obligation is entirely void. When the Spaniards attacked the Americans, under a pretence that those people refused to traffic with them, they only endeavoured to throw a colourable veil over their own insatiable avarice.

§ 26. Necessity of commercial treaties. (100)

These few remarks, together with what we have already said on

the subject (Book I. Chap. VIII.), may suffice to establish the principles of the natural law of nations respecting the mutual commerce of states. It is not difficult to point out, in general, what are the duties of nations in this respect, and what the law of nature prescribes to them for the good of the great society of mankind. But, as each nation is only so far obliged to carry on commerce with others as she can do it without being wanting to herself, and as the whole ultimately depends on the judgment that each state may form of what it can and ought to do in particular cases, nations cannot count on any thing more than generalities, such as, the inherent liberty of each to carry on trade, and, moreover, on imperfect rights, which depend on the judgment of others, and, consequently, are ever uncertain. Wherefore, if they wish to secure to themselves any definite and constant advantages, they must procure them by treaties.

§ 27. General rule concerning those treaties.

Since a nation has a full right to regulate herself in commercial affairs by what is useful or advantageous to her, she may make such commercial treaties as she thinks proper; and no other nation has a right to take offence, provided those treaties do not affect the perfect rights of others. If, by the engagements contracted, a nation, unnecessarily, or without powerful reasons, renders herself incapable of joining in the general trade which nature recommends between nations, she trespasses against her duty. But, the nation being the sole judge in this case (Prelim. § 16), other nations are bound to respect her natural liberty — to acquiesce in her determination, and even to suppose that she is actuated by substantial reasons. Every commercial treaty, therefore, which does not impair the perfect right of others, is allowable between nations; nor can the execution of it be lawfully opposed. But those commercial treaties alone are in themselves just and commendable, which pay to the general interest of mankind as great a degree of respect as is possible and reasonable in the particular case.

§ 28. Duty of nations in making those treaties.

As express promises and engagements should be inviolable, every wise and virtuous nation will be attentive to examine and weigh a commercial treaty before she concludes it, and to take care that she be not thereby engaged to any thing contrary to the duties which she owes to herself and others.

§ 29. Perpetual or temporary treaties, or treaties revocable at pleasure.

Nations may, in their treaties, insert such clauses and conditions as they think proper; they are at liberty to make them perpetual, or temporary, or dependent on certain events. It is usually most prudent not to engage for ever, as circumstances may afterwards intervene, by which the treaty might become very oppressive to one of the contracting parties. A nation may confine a treaty to the grant of only a precarious right — reserving to herself the liberty of revoking it at pleasure. We have already observed (Book I. § 94) that a simple permission does not any more than long custom (Ibid. § 95), give any perfect right to a trade. Those things — namely, permission and customs — are therefore not to be confounded with treaties, — not even with those which give only a precarious right.

§ 30. Nothing contrary to the tenor of a treaty can be granted to a third party.

When once a nation has entered into engagements by treaty, she is no longer at liberty to do, in favour of others, contrary to the tenor of the treaty, what she might otherwise have granted to them agreeably to the duties of humanity or the general obligation of mutual commerce; for she is to do for others no more than what is in her power; and, having deprived herself of the liberty of disposing of a thing, that thing is no longer in her power. Therefore, when a nation has engaged to another that she will sell certain merchandise or produce to the latter only — as, for instance, corn — she can no longer sell it to any other. The case is the same in a contract to purchase certain goods of that nation alone.

§ 31. How far lawful to give up by treaty the liberty of trading with other nations.

But it will be asked, how and on what occasions a nation may enter into engagements which deprive her of the liberty to fulfil her duties to others. As the duties we owe to ourselves are paramount to those we owe to others, if a nation finds her safety and substantial advantage in a treaty of this nature, she is unquestionably justifiable in contracting it, especially as she does not thereby interrupt the general commerce of nations, but simply causes one particular branch of her own commerce to pass through other hands, or insures to a particular people certain things of which they stand in need. If a state which stands in need of salt can secure a supply of it from another, by engaging to sell her corn and cattle only to that other nation, who will doubt but that she has a right to conclude so salutary a treaty? In this case, her corn or cattle are goods which she disposes of for supplying her own wants. But, from what we have observed (§ 28), engagements of this kind are not to be entered into without very good reasons. However, be the reasons good or bad, the treaty is still valid, and other nations have no right to oppose it (§ 27).

§ 32. A nation may abridge its commerce in favour of another.

Every one is at liberty to renounce his right; a nation, therefore, may lay a restriction on her commerce in favour of another nation, and engage not to traffic in a certain kind of goods, or to forbear trading with such and such a country, &c. And, in departing from such engagements, she acts against the perfect right of the nation with which she has contracted, and the latter has a right to restrain her. The natural liberty of trade is not hurt by treaties of this nature; for that liberty consists only in every nation being unmolested in her right to carry on commerce with those that consent to traffic with her; each one remaining free to embrace or decline a particular branch of commerce, as she shall judge most advantageous to the state.

§ 33. A nation may appropriate to herself a particular branch of trade.

Nations not only carry on trade for the sake of procuring necessary or useful articles, but also with a view to make it a source of opulence. Now, wherever a profit is to be made, it is equally lawful for every one to participate in it: but the most diligent may lawfully anticipate the others by taking possession of an advantage which lies open to the first occupier; — he may even secure the whole entirely to himself, if he has any lawful means of appropriating it. When, therefore, a particular nation is in sole possession of certain articles, another nation may lawfully procure to herself by treaty the advantage of being the only buyer, and then sell them again all over the world. And, as it is indifferent to nations from what hand they receive the commodities they want, provided they obtain them at a reasonable price, the monopoly of this nation does not clash with the general duties of humanity, provided that she do not take advantage of it to set an unreasonable and exorbitant price on her goods. Should she, by an abuse of her monopoly, exact an immoderate profit, this would be an offence against the law of nature, as, by such an exaction, she either deprives other nations of a necessary or agreeable article which nature designed for all men, or obliges them to purchase it at too dear a rate: nevertheless, she does not do them any positive wrong, because, strictly speaking, and according to external right, the owner of a commodity may either keep it or set what price he pleases on it. Thus, the Dutch, by a treaty with the king of Ceylon, have wholly engrossed the cinnamon trade: yet, whilst they keep their profits within just limits, other nations have no right to complain.

But, were the necessaries of life in question — were the monopolist inclined to raise them to an excessive price — other nations would be authorized by the care of their own safety, and for the advantage of human society, to form a general combination in order to reduce a greedy oppressor to reasonable terms. The right to necessaries is very different from that to things adapted only to convenience and pleasure, which we may dispense with if they be too dear. It would be absurd that the subsistence and being of other nations should depend on the caprice or avidity of one.

§ 34. Consuls. (101)

Among the modern institutions for the advantage of commerce, one of the most useful is that of consuls, or persons residing in the large trading cities, and especially the seaports, of foreign countries, with a commission to watch over the rights and privileges of their nation, and to decide disputes between her merchants there. When a nation trades largely with a country, it is requisite to have there a person charged with such a commission: and, as the state which allows of this commerce must naturally favour it, — for the same reason, also, it must admit the consul. But, there being no absolute and perfect obligation to this, the nation that wishes to have a consul, must procure this right by the commercial treaty itself.

The consul being charged with the affairs of his sovereign, and receiving his orders, continues his subject, and accountable to him for his actions.

The consul is no public minister (as will appear by what we shall say of the character of ministers, in our fourth book), and cannot pretend to the privileges annexed to such character. Yet, bearing his sovereign's commission, and being in this quality received by the prince in whose dominions he resides, he is, in a certain degree, entitled to the protection of the law of nations. This sovereign, by the very act of receiving him, tacitly engages to allow him all the liberty and safety necessary to the proper discharge of his functions, without which the admission of me consul would be nugatory and delusive.

The functions of a consul require, in the first place, that he be not a subject of the state where he resides: as, in this case, he would be obliged in all things to conform to its orders, and thus not be at liberty to acquit himself of the duties of his office.

They seem even to require that the consul should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned unless he himself violate the law of nations by some enormous crime.

And, though the importance of the consular functions be not so great as to procure to the consul's person the inviolability and absolute independence enjoyed by public ministers, — yet, being under the particular protection of the sovereign who employs him, and intrusted with the care of his concerns, — if he commits any crime, the respect due to his master requires that he should be sent home to be punished. Such is the mode pursued by states that are inclined to preserve a good understanding with each other. But the surest way is, expressly to settle all these matters, as far as practicable, by the commercial treaty.

Wicquefort, in his treatise of The Ambassador, Book I. § 5, says, that consuls do not enjoy the protection of the law of nations, and that, both in civil and criminal cases, they are subject to the justice of the place where they reside. But the very instances he quotes contradict his proposition. The states-general of the United Provinces, whose consul had been affronted and put under arrest by the governor of Cadiz, complained of it to the court of Madrid as a breach of the law of nations. And, in the year 1634, the republic of Venice was near coming to a rupture with pope Urban VIII. on account of the violence offered to the Venetian consul by the governor of Ancona. The governor, suspecting this consul to have given information detrimental to the commerce of Ancona, had persecuted him, seized his furniture and papers, and caused him to be summoned, declared guilty of contumacy, and banished under pretence that, contrary to public prohibition, he had caused goods to be unloaded in a time of contagion. This consul's successor he likewise imprisoned. The Venetian senate warmly insisted on having due satisfaction: and, on the interposition of the ministers of France, who were apprehensive of an open rupture, the pope obliged the governor of Ancona to give the republic satisfaction accordingly.

In default of treaties, custom is to be the rule on these occasions; for, a prince, who receives a consul without express conditions, is supposed to receive him on the footing established by custom.


(97) The restrictions on trade, which have been enforced absolutely or conditionally, by almost all the powerful nations of the world, have been the cause of a thousand wars, and the groundwork of innumerable treaties; and, therefore, it is important that we should give them full consideration.

With respect to the freedom of trade. It has been laid down by the wisest of politicians and best of men, that every nation ought not only to countenance trade as far as it reasonably can, but even to protect and favour it; and that freedom being very favourable to commerce, it is implied in the duties of nations that they should support it as far as possible, instead of cramping it by unnecessary burdens or restrictions; and this position is supported by the reasons thus urged by Vattel (supra, § 21).

It was this feeling that influenced that celebrated statesman, Mr. Pitt, in concluding the commercial treaty with France, in 1786. Great Britain and France had, for centuries before, contrary to every sound principle of policy, acted as rival enemies,{1} and their commercial policy was dictated by the same spirit which prompted their unhappy wars; insomuch, that, though they possessed the materials of a most extensive commerce — the one abounding in all that art and industry can supply, and the other in productions of a more favoured soil and climate — the exchange of their peculiar produce was discouraged by a complicated system of restraint and heavy duties.{2} The object of the commercial treaty alluded to was, to abolish those pernicious restraints, and, by connecting the two countries in the bonds of a reciprocal trade, to pledge them, by their mutual interest, to an oblivion of their ancient animosities. The view in which that treaty originated was explained by Mr. Pitt, when it was submitted to Parliament; and the sentiments which he expressed gave to this measure a remarkable character of moderation and wisdom. In reply to an argument inculcating constant jealousy of France,{2} he inquired, "whether. in using the word jealousy, it was meant to recommend to this country such a species of jealousy as should be either mad or blind, such a species of jealousy as should induce her either madly to throw away what was to make her happy, or blindly grasp at that which must end in her ruin? Was the necessity of a perpetual animosity with France so evident and so pressing that for it we were to sacrifice every commercial advantage we might expect from a friendly intercourse with that country? or, was a pacific connection between the two kingdoms so highly offensive that even an extension of commerce could not counterpoise it?" Towards the close of the same speech, he observes, "The quarrels between France and Britain had too long continued to harass not only those two great nations themselves, but had frequently embroiled the peace of Europe; nay, had disturbed the tranquillity of the most remote parts of the world. They had by their past conduct, acted as if they were intended for the destruction of each other; but he hoped the time was now come when they should justify the order of the universe and show that they were better calculated for the more amiable purposes of friendly intercourse and mutual benevolence."; "Considering the treaty," he continued, "in a political view, he should not hesitate to contend against the loo frequently advanced doctrine, that France was and must be the unalterable enemy of Britain; his mind revolted from this position as monstrous and impossible. To suppose that any nation was unalterably the enemy of another, was weak and childish: it had neither its foundation in the experience of nations nor in the history of man. It was a libel on the constitution of political societies, and supposed diabolical malice in the original frame of man." — C.

{1}. 2 Smith's Wealth of Nations, pp. 226-7, 252-3; Tucker's Pamphlet, Cui Bono.

{2}. See Smith's Wealth of Nations, vol. 4, 169, per Buchanan; and see Andersen's Hist. Com. vol. 4, pp. 634 to 639.

(98) It is a general rule of the law of nations, that, in time of peace, no nation is entitled to limit or impose regulations upon the commerce which any other independent state may think fit to carry on, either externally, with the natives of other independent states, or internally, amongst its own subjects. Puffend. b. 4, c. 5, s. 10, p. 168; Marten's L.N. 152-53; where see the different authorities in support of this position. It there seems that an exclusive trade may be acquired by a treaty with the nations of India who have not before entered into a restrictive treaty. See also 1 Chit. Com. L. 76. — C.

(99) See further, 1 Chit. Com. L. 80, n. 2; Grotius, 158; Puff. b. 4, c. 5, s. 10, p. 168.

(100) See, more fully, 1 Chitty's Com. L. 35.

(101) See further as to consuls, post. B. 4, ch 8, s. 75, p. 461. This and the following sections are much too concise upon the important subject of consuls. See more fully 1 Chitty's Commercial Law, 48 to 73; statute 6 Geo. 4. c. 87; Warden on Consular Establishments, Paris, A.D. 1813; Madame de Steck, a Berlin. 1790; Anderson's Hist. Commerce, index, titles "Conservator," and "Consul;" and see decisions Albreton v. Sussman, 2 Ves. & B. 323; 4 Bar. & Cres. 886; 8 Moore's Rep. 632; 7 T.R. 251; 8 East. 364; 2 Chalm. Opin. 294. A foreign consul cannot sue a merchant here for any supposed services in that character — De Lima v. Holdimand, 1 Ryan & Moody, 45: nor is he privileged from arrest, Vivash v. Belcher. 3 Mau. & Selw. 284. (He is liable as garnishee in the case of a foreign attachment in the state courts, Kidderlin v. Meyer, 2 Mile's Rep. 242; and to indictment for misdemeanour in the courts of the United States, which have exclusive jurisdiction. U. States v. Ravara, 2 Dall. Rep. 297; Comm. v. Kozloff, 5 Serg, & Rawle, 545. The State v. De la Forest. 2 Nott & McCord's Rep. 545, contra.)


The LAW OF NATIONS - BOOK II.

CHAP. III.

OF THE DIGNITY AND EQUALITY OF NATIONS — OF TITLES AND OTHER MARKS OF HONOUR.

§ 35. Dignity of nations or sovereign states.

EVERY nation, every sovereign and independent state, deserves consideration and respect, because it makes an immediate figure in the grand society of the human race, is independent of all earthly power, and is an assemblage of a great number of men, which is, doubtless, more considerable than any individual. The sovereign represents his whole nation; he unites in his person all its majesty. No individual, though ever so free and independent, can be placed in competition with a sovereign; this would be putting a single person upon an equality with a united multitude of his equals. Nations and sovereigns are, therefore, under an obligation, and at the same time have a right, to maintain their dignity, and to cause it to be respected, as being of the utmost importance to their safety and tranquillity.

§ 36. Their equality.

We have already observed (Prelim. § 18) that nature has established a perfect equality of rights between independent nations. Consequently, none can naturally lay claim to any superior prerogative: for, whatever privileges any one of them derives from freedom and sovereignty, the others equally derive the same from the same source.

§ 37. Precedency.

And since precedency or pre-eminence of rank is a prerogative, no nation, no sovereign, can naturally claim it as a right. Why should nations that are not dependent on him give up any point to him against their will? However, as a powerful and extensive state is much more considerable in universal society than a small state, it is reasonable that the latter should yield to the former on occasions where one must necessarily yield to the other, as, in an assembly, — and should pay it those more ceremonial deferences which do not, in fact, destroy their equality, and only show a superiority of order, a first place among equals. Other nations will naturally assign the first place to the more powerful state; and it would be equally useless as ridiculous for the weaker one obstinately to contend about it. The antiquity of the state enters also into consideration on these occasions: a new comer cannot dispossess any one of the honours he has enjoyed; and he must produce very strong reasons, before he can obtain a preference.

§ 38. The form of government is foreign to this question.

The form of government is naturally foreign to this question. The dignity, the majesty, resides originally in the body of the state; that of the sovereign is derived from his representing the nation. And can it be imagined that a state possesses more or less dignity according as it is governed by a single person or by many? At present kings claim a superiority of rank over republics: but this pretension has no other support than the superiority of their strength. Formerly, the Roman republic considered all kings as very far beneath them: but the monarchs of Europe, finding none but feeble republics to oppose them, have disdained to admit them to an equality. The republic of Venice, and that of the United Provinces, have obtained the honours of crowned heads; but their ambassadors yield precedency to those of kings.

§ 39. A state ought to keep its rank, notwithstanding any changes in the form of its government.

In consequence of what we have just established, if the form of government in a nation happens to be changed she will still preserve the same honours and rank of which she was before in possession. When England had abolished royalty, Cromwell would suffer no abatement of the honours that had been paid to the crown or to the nation; and he everywhere maintained the English ambassadors in the rank they had always possessed.

§ 40. In this respect treaties and

If the grades of precedency have been settled by treaties or by long custom founded on tacit consent, it is necessary to conform to the established rule. To dispute with a prince the rank he has acquired in this manner, is doing him an injury, inasmuch as it is an expression of contempt for him, or a violation of engagements that secure to him a right. Thus, by the injudicious partition between the sons of Charlemagne, the elder having obtained the empire, the younger who received the kingdom of France, yielded precedency to him the more readily, as there still remained at that time a recent idea of the majesty of the real Roman empire. His successor followed the rule they found established: — they were imitated by the other kings of Europe; and thus the imperial crown continues to possess, without opposition, the first rank in Christendom. With most of the other crowns, the point of precedency remains yet undetermined.

Some people would have us to look upon the precedency of the emperor as something more than the first place among equals; they would fain attribute to him the temporal head of Christendom.1 And it, in fact, appears that many emperors entertained ideas of such pretensions, — as if, by reviving the name of the Roman empire, they could also revive its rights. Other states have been on their guard against these pretensions. We may see in Mezeray2 the precautions taken by king Charles V. when the emperor Charles IV. visited France, "for fear," says the historian, "lest that prince, and his son, the king of the Romans, should found any right of superiority on his courtesy." Bodinus relates,3 that "the French took great offence at the Emperor Sigismund's placing himself in the royal seat in full parliament, and at his having knighted the Senechal de Beaucaire ." — adding that," to repair the egregious error they had committed in suffering it, they would not allow the same emperor, when at Lyons to make the Count of Savoy a duke." At present, a king of France would doubtless think it a degradation of his dignity, were he to intimate the most distant idea that another might claim any authority in his kingdom.4

§ 41. Of the name and honours.

As a nation may confer on her conductor what degree of authority and what rights she thinks proper, she is equally free in regard to the name, the titles, and honours with which she may choose to decorate him. But discretion and the care of her reputation require that she should not, in this respect, deviate too far from the customs commonly established among civilized nations. Let us further observe, that in this point, she ought to be guided by prudence, and inclined to proportion the titles and honours of her chief to the power he possesses, and to the degree of authority with which she chooses to invest him. Titles and honours, it is true, determine nothing: they are but empty names, and vain ceremonies, when they are misplaced: yet, who does not know how powerful an influence they have on the minds of mankind? This is, then, a more serious affair than it appears at the first glance. The nation ought to take care not to debase herself before other states, and not to degrade her chief by too humble a title: she ought to be still more careful not to swell his heart by a vain name, by unbounded honours, so as to inspire him with the idea of arrogating to himself a commensurate authority over her, or of acquiring a proportionate power by unjust conquests. On the other hand, an exalted title may engage the chief to support, with greater firmness, the dignity of the nation. Prudence is guided by circumstances, and, on every occasion keeps within due bounds. "Royalty," says a respectable author, who may be believed on this subject, "rescued the house of Brandenburg from that yoke of servitude under which the house of Austria then kept all the German princes. This was a bait which Frederic I. threw out to all his posterity, saying to them, as it were I have acquired a title for you; do you render yourselves worthy of it: I have laid the foundations of your greatness; it is you who are to finish the work."5

§ 42. Whether a sovereign may assume what title and honours he pleases.

If the conductor of the state is sovereign, he has in his hands the rights and authority of the political society; and consequently he may himself determine what title he will assume, and what honours shall be paid to him, unless these have been already determined by the fundamental laws, or that the limits which have been set to his power manifestly oppose such as he wishes to assume. His subjects are equally obliged to obey him in this as in whatever he commands by virtue of a lawful authority. Thus, the Czar Peter I., grounding his pretensions on the vast extent of his dominions, took upon himself the title of emperor.

§ 43. Right of other nations in this respect.

But foreign nations are not obliged to give way to the will of a sovereign who assumes a new title, or of a people who call their chief by what name they please.6

However, if this title has nothing unreasonable, or contrary to received customs, it is altogether agreeable to the mutual duties which bind nations together, to give to a sovereign or conductor of a state the same title that is given him by his people. But if this title is contrary to custom — if it implies attributes which do not belong to him who affects it, foreign nations may refuse it without his having reason to complain. The title of "Majesty" is consecrated by custom to monarchs who command great nations. The emperors of Germany have long affected to reserve it to themselves, as belonging solely to the imperial crown. But the kings asserted with reason that there was nothing on earth more eminent or more august than their dignity: they therefore refused the title of Majesty to him who refused it to them;7 and at present, except in a few instances founded on particular reasons, the title of Majesty is a peculiar attribute of the royal character.

§ 44. Their duty.

As it would be ridiculous for a petty prince to take the title of king, and assume the style of "Majesty," foreign nations, by refusing to comply with this whim, do nothing but what is conformable to reason and their duty. However, if there reigns anywhere a sovereign, who, nothwithstanding the small extent of his power, is accustomed to receive from his neighbours the title of king, distant nations who would carry on an intercourse with him cannot refuse him that title. It belongs not to them to reform the customs of distant countries.

§ 45. How titles and honours may be secured.

The sovereign who wishes constantly to receive certain titles and honours from other powers, must secure them by treaties. Those who have entered into engagements in this way are obliged to conform to them, and cannot deviate from the treaties without doing him an injury. Thus, in the examples we have produced (§§ 41 and 42), the czar and the king of Prussia took care to negotiate beforehand with the courts in friendship with them, to secure their being acknowledged under the new titles they intended to assume.

The popes have formerly pretended that it belonged to the tiara alone to create new crowns; they had the confidence to expect that the superstition of princes and nations would allow them so sublime a prerogative. But it was eclipsed at the revival of letters.8 The emperors of Germany, who formed the same pretensions, were at least countenanced by the example of the ancient Roman emperors. They only want the same power in order to have the same right.

§ 46. We must conform to general customs.

In default of treaties, we ought, with respect to titles, and, in general, every other mark of honour, to conform to the rule established by general custom. To attempt a deviation from it with respect to a nation or sovereign, when there is no particular reason for such innovation, is expressing either contempt or ill-will towards them;" a conduct equally inconsistent with sound policy and with the duties that nations owe to each other. (102)

§ 47. Mutual respect which sovereigns owe to each other.

The greatest monarch ought to respect in every sovereign the eminent character with which he is invested. The independence, the equality of nations, the reciprocal duties of humanity, — all these circumstances should induce him to pay, even to the chief of a petty state, the respect due to the station which he fills. The weakest state is composed of men as well as the most powerful: and our duties are the same towards all those who do not depend on us.

But this precept of the law of nature does not extend beyond what is essential to the respect which independent nations owe to each other, or that conduct, in a word, which shows that we acknowledge a state or its chief to be truly independent and sovereign, and consequently entitled to every thing due to the quality of sovereignty. But on the other hand a great monarch being as we have already observed, a very important personage in human society, it is natural, that, in matters merely ceremonial, and not derogatory to the equality of rights between nations, he should receive honours to which a petty prince can have no pretensions: and the latter cannot refuse to pay the former every mark of respect which is not inconsistent with his own independence and sovereignty.

§ 48. How a sovereign ought to maintain his dignity.(103)

Every nation, every sovereign, ought to maintain their dignity (§ 35) by causing due respect to be paid to them; and, especially, they ought not to suffer that dignity to be impaired. If, then, there are titles and honours, which, by constant custom, belong to a prince, he may insist upon them; and he ought to do it on occasions where his glory is concerned.

But it is proper to distinguish between neglect or the omission of what the established usage requires, and positive acts of disrespect and insult. The prince may complain of an instance of neglect, and, if it be not repaired, may consider it as an indication of ill-will: he has a right to demand, even by force of arms, the reparation of an insult. The czar Peter the First, in his manifesto against Sweden, complained that the cannon had not been fired on his passing at Riga. He might think it strange that they did not pay him this mark of respect, and he might complain of it; but, to have made this the subject of a war, must have indicated a preposterous prodigality of human blood.


1. Bartolus went so far as to say, that "all those were heretics who did not believe that the emperor was lord of the whole earth." See Bodinus's Republic, book i. ch. ix. p.m. 139.

2. History of France, explanation of the medals of Charles V.

3. In his Republic, p. 138.

4. Pentherrieder, minister plenipotentiary of the emperor at the congress of Cambray, made an attempt to insure to his master an incontestable superiority and pre-eminence over all the other crowned heads. He induced Count Provana, the king of Sardinia's minister, to sign a deed, in which he declared that neither his own sovereign nor any other prince had a right to dispute pre-eminence with the emperor, its contents being made public, the kings made such heavy complaints on the occasion, that Provana was recalled, and the emperor ordered his minister to suppress the deed, — affecting, at the same time, a profound ignorance of the whole transaction: and thus the affair was dropped. Memoirs of Mons. de St. Philippe, vol. iv. p. 194.

5. Memoirs of the House of Brandenburg.

6. Cromwell, in writing to Louis the Fourteenth, used the following style; — "Olivarius, Dominus Protector Angliæ, Scotiæ, et Hiberniæ, Ludovico XIV. Francorum Regi Christianissime Rex." — And the subscription was — "In Aula nostra Alba. Vester bonus amicus." The court of France was highly offended at this form of address. The ambassador Boreel, in a letter to the Pensionary De Witt, dated May 25, 1655, said that Cromwell's letter had not been presented, and that those who were charged with the delivery of it, had withheld it, through an apprehension of its giving rise to some misunderstanding between the two countries.

7. At the famous treaty of Westphalia, the plenipotentiaries of France agreed with those of the emperor, "that the king and queen writing with their own hand to the emperor, and giving him the title of majesty, he should answer them, with his own hand, and give them the same title." Letter of the plenipotentiaries to M. de Brienne, Oct. 15th, 1646.

8. Catholic princes receive still from the pope titles that relate to religion, Benedict XIV. gave that of "Most Faithful" to the king of Portugal, and the condescension of other princes connived at the imperative style in which the bull is couched. — It is dated December 23, 1748.

(102) Formerly all nations used to observe, in the British Seas, the mark of honour, by lowering the flag or top-sail to an English man of war, called the duty of the flag. See 1 Chitty's Commercial Law, 102, and see end of 2d vol. p. 324. See, as to the sea and incidents, ante, 125 and 131 in notes; and Cours de Droit Public, tum. 2, p. 80 to 64, and 396 to 406. — C.

(103) The House of Lords recently rather facetiously, maintained the dignity of the king of Spain, by declining to give him costs, on the same principle that our king does not recover costs, saying, we will not disparage the dignity of the king of Spain by giving him costs. Hewlett v. King of Spain, on appeal from Chancery to House of Lords, 1 Dow. Rep. New Series, 177.


The LAW OF NATIONS - BOOK II.

CHAP. IV.

OF THE RIGHT TO SECURITY, AND THE EFFECTS OF THE SOVEREIGNTY AND INDEPENDENCE OF NATIONS.(104)

§ 49. Right to security.

IN vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible — what is proper and conformable to our duties. We have, then, in general, a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness, — that is, to preserve herself from all injuries (§ 18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.

§ 50. It produces the right of resistance;

It is safest to prevent the evil when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.

§ 51. and that of obtaining reparation;

When the evil is done, the same right to security authorizes the offended party to endeavour to obtain a complete reparation, and to employ force for that purpose if necessary.

§ 52. and the right of punishing.

Finally, the offended party have a right to provide for their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. They only make use of their right in all these measures, which they adopt with good reason: and if evil thence results to him who has reduced them to the necessity of taking such steps, he must impute the consequences only to his own injustice.

§ 53. Right of all nations against a mischievous people.

If, then, there is anywhere a nation of a restless and mischievous disposition, ever ready to injure others, to traverse their designs and to excite domestic disturbances in their dominions, — it is not to be doubted that all the others have a right to form a coalition in order to repress and chastise that nation, and to put it for ever after out of her power to injure them. Such would be the just fruits of the policy which Machiavel praises in Cæsar Borgia. The conduct followed by Philip II. king of Spain, was calculated to unite all Europe against him; and it was from just reasons that Henry the Great formed the design of humbling a power whose strength was formidable, and whose maxims were pernicious.

The three preceding propositions are so many principles that furnish the various foundations for a just war, as we shall see in the proper place.

§ 54. No nation has a right to interfere in the government of another state.

It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.(105)

§ 55. One sovereign cannot make himself the judge of the conduct of another.

The sovereign is he to whom the nation has intrusted the empire and the care of the government: she has invested him with her rights; she alone is directly interested in the manner in which the conductor she has chosen makes use of his power. It does not, then, belong to any foreign power to take cognisance of the administration of that sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it. If he loads his subjects with taxes, and if he treats them with severity, the nation alone is concerned in the business; and no other is called upon to oblige him to amend his conduct and follow more wise and equitable maxims. It is the part of prudence to point out the occasions when officious and amicable representations may be made to him. the Spaniards violated all rules when they set themselves up as judges of the Inca Atahualpa. If that prince had violated the law of nations with respect to them, they would have had a right to punish him. But they accused him of having put some of his subjects to death, of having had several wives, &c. — things, for which he was not at all accountable to them; and, to fill up the measure of their extravagant injustice, they condemned him by the laws of Spain.1

§ 56. How far lawful to interfere in a quarrel between a sovereign and his subjects.

But, if the prince, by violating the fundamental laws, gives his subjects a legal right to resist him, — if tyranny, becoming insupportable, obliges the nation to rise in their own defence, — every foreign power has a right to succour an oppressed people who implore their assistance. The English justly complained of James II. The nobility and the most distinguished patriots having determined to check him in the prosecution of his schemes, which manifestly tended to overthrow the constitution, and to destroy the liberties and the religion of the people, applied for assistance to the United Provinces. The authority of the Prince of Orange had, doubtless, an influence on the deliberations of the states-general; but it did not lead them to the commission of an act of injustice: for, when a people, from good reasons take up arms against an oppressor, it is but an act of justice and generosity to assist brave men in the defence of their liberties. Whenever, therefore, matters are carried so far as to produce a civil war, foreign powers may assist that party which appears to them to have justice on its side. He who assists an odious tyrant, — he who declares for an unjust and rebellious people, — violates his duty. But, when the bands of the political society are broken, or at least suspended, between the sovereign and his people, the contending parties may then be considered as two distinct powers; and, since they are both equally independent of all foreign authority, nobody has a right to judge them. Either may be in the right; and each of those who grant their assistance may imagine that he is acting in support of the better cause. It follows, then in virtue of the voluntary law of nations (see Prelim. § 21), that the two parties may act as having an equal right, and behave to each other accordingly till the decision of the affair.

But we ought not to abuse this maxim, and make a handle of it to authorize odious machinations against the internal tranquillity of states. It is a violation of the law of nations to invite those subject to revolt who actually pay obedience to their sovereign, though they complain of his government.

The practice of nations is conformable to our maxims. When the German protestants came to the assistance of the reformed party in France, the court never attempted to treat them otherwise than on the usual footing of enemies in general, and according to the laws of war. France was at the same time engaged in assisting the Netherlands then in arms against Spain, and expected that her troops should be considered in no other light than as auxiliaries in a regular war. But no power ever fails to complain, as of an atrocious wrong, if any one attempts by his emissaries to excite his subjects to revolt.

As to those monsters who, under the title of sovereigns, render themselves the scourges and horror of the human race, they are savage beasts, whom every brave man may justly exterminate from the face of the earth. All antiquity has praised Hercules for delivering the world from an Antæs, a Busiris, and a Diomede.

§ 57. Right of opposing the interference of foreign powers in the affairs of government.

After having established the position that foreign nations have no right to interfere in the government of an independent state, it is not difficult to prove that the latter has a right to oppose such interference. To govern herself according to her own pleasure, is a necessary part of her independence. A sovereign state cannot be constrained in this respect, except it be from a particular right which she has herself given to other states by her treaties; and, even if she has given them such a right, yet it cannot, in an affair of so delicate a nature as that of government, be extended beyond the clear and express terms of the treaties. In every other case, a sovereign has a right to treat those as enemies who attempt to interfere in his domestic affairs otherwise than by their good offices.

§ 58. The same rights with respect to religion.

Religion is in every sense an object of great importance to a nation, and one of the most interesting subjects on which the government can be employed. An independent people are accountable for their religion to God alone; in this particular, as in every other, they have a light to regulate their conduct according to the dictates of their own conscience, and to prevent all foreign interference in an affair of so delicate a nature.2 The custom, long kept up in Christendom of causing all the affairs of religion to be decided and regulated in a general council, could only have been introduced by the singular circumstance of the submission of the whole church to the same civil government, — the Roman empire. When that empire was overthrown, and gave place to many independent kingdoms, this custom was found contrary to the first principles of government, to the very idea of independent states and political societies. It was, however, long supported by prejudice, ignorance, and superstition, by the authority of the popes and the power of the clergy, and still respected even at the time of the reformation. The states who had embraced the reformed religion offered to submit to the decisions of an impartial council lawfully assembled. At present they would not hesitate to declare, that, in matters of religion, they are equally independent of every power on earth, as they are in the affairs of civil government. The general and absolute authority of the pope and council is absurd in every other system than that of those popes who strove to unite all Christendom in a single body, of which they pretended to be the supreme monarchs.3 But even Catholic sovereigns have endeavoured to restrain that authority within such limits as are consistent with their supreme power: they do not receive the decrees of councils or the popes' bulls till they have caused them to be examined; and these ecclesiastical laws are of no force in their dominions unless confirmed by the prince. In the first book of this work, Chap. XII. we have sufficiently established the rights of a state in matters of religion; and we introduce them hero again, only to draw just consequences from them with respect to the conduct which nations ought to observe towards each other.

§ 59 No nation can be constrained with respect to religion.

It is, then, certain that we cannot in opposition to the will of a nation, interfere in her religious concerns, without violating her rights, and doing her an injury. Much less are we allowed to employ force of arms to oblige her to receive a doctrine and a worship which we consider as divine. What right have men to set themselves up as the defenders and protectors of the cause of God? He can, whenever he pleases, lead nations to the knowledge of himself, by more effectual means than those of violence. Persecutors make no true converts. The monstrous maxim of extending religion by the sword, is a subversion of the rights of mankind, and the most terrible scourge of nations.

§ 60. Offices of humanity in these matters. Missionaries.

But it is an office of humanity to labour, by mild and lawful means, to persuade a nation to receive a religion which we believe to be the only one that is true and salutary. Missionaries may be sent to instruct the people; and this care is altogether comformable to the attention which every nation owes to the perfection and happiness of others. But it must be observed, that, in order to avoid doing an injury to the rights of a sovereign, the missionaries ought to abstain from preaching clandestinely, or without his permission, a new doctrine to his people. He may refuse to accept their proffered services; and, if he orders them to leave his dominions, they ought to obey. They should have a very express order from the King of kings, before they can lawfully disobey a sovereign who commands according to the extent of his power; and the prince who is not convinced of that extraordinary order of the Deity, will do no more than exert his lawful rights, in punishing a missionary for disobedience. But, what if the nation, or a considerable part of the people, are desirous of retaining the missionary, and following his doctrine? In a former part of the work (Book I. §§ 128-136), we have established the rights of the nation and those of the citizens; and thither we refer for an answer to this question.

Every madman will fancy he is fighting in the cause of God, and every aspiring spirit will use that pretext as a cloak for his ambition. While Charlemagne was ravaging Saxony with fire and sword, in order to plant Christianity there, the successors of Mohammed were ravaging Asia and Africa, to establish the Koran in those parts.

§ 61. Circumspection to be used.

This is a very delicate subject; and we cannot authorize an inconsiderate zeal for making proselytes, without endangering the tranquillity of all nations, and even exposing those who are engaged in making converts to act inconsistently with their duty, at the very time they imagine they are accomplishing the most meritorious work. For, it is certainly performing a very bad office to a nation and doing her an essential injury, to spread a false and dangerous religion among the inhabitants. Now, there is no person who does not believe his own religion to be the only true and safe one. Recommend, kindle in all hearts, the ardent zeal of the missionaries, and you will see Europe inundated with Lamas, Bonzes, and Dervises, while monks of all kinds will overrun Asia and Africa. Protestant ministers will crowd to Spain and Italy, in defiance of the Inquisition, while the Jesuits will spread themselves among the Protestants in order to bring them back into the pale of the church. Let the Catholics reproach the Protestants as much as they please with their lukcwarmness, the conduct of the latter is undoubtedly more agreeable to reason and the law of nations. True zeal applies itself to the task of making a holy religion flourish in the countries where it is received, and of rendering it useful to the manners of the people and to the state: and, without forestalling the dispositions of Providence, it can find sufficient employment at home, until an invitation come from foreign nations, or a very evident commission be given from heaven, to preach that religion abroad. Finally, let us add, that before we can lawfully undertake to preach a particular religion to the various nations of the earth, we must ourselves be thoroughly convinced of its truth by the most serious examination. — "What! can Christians doubt of their religion?" — The Mohammedan entertains no doubt of his. Be ever ready to impart your knowledge, — simply and sincerely expose the principles of your belief to those who are desirous of hearing you: instruct them, convince them by evidence, but seek not to hurry them away with the fire of enthusiasm. It is a sufficient charge on each of us, to be responsible for his own conscience. — Thus, neither will the light of knowledge be refused to any who wish to receive it, nor will a turbulent zeal disturb the peace of nations.

§ 62. What a sovereign may do in favour of those who profess his religion in another state.

When a religion is persecuted in one country, foreign nations who profess it may intercede for their brethren: but this is all they can lawfully do, unless the persecution be carried to an intolerable excess: then, indeed, it becomes a case of manifest tyranny, in opposition to which all nations are allowed to assist an unhappy people (§ 56). A regard to their own safety may also authorize them to undertake the defence of the persecuted sufferers A king of France replied to the ambassadors who solicited him to suffer his subjects of the reformed religion to live in peace, "that he was master in his own kingdom," But the Protestant sovereigns, who saw a general conspiracy of the Catholics obstinately bent on their destruction, were so far masters on their side as to be at liberty to give assistance to a body of men who might strengthen their party, and help them to preserve themselves from the ruin with which they were threatened. All distinctions of states and nations are to be disregarded, when there is question of forming a coalition against a set of madmen who would exterminate all those that do not implicitly receive their doctrines.


(104) As to the independence of nations, see in general, Cours de Droit Public. Paris, A.D. 1830, tom. 2, 1st part, article ii. pp. 3 to 15.

(105) Nor has a subject of one state a right to enter into any contract with, or to assist the revolted colony of another before the same has been formally recognised as an independent state by its own government; and if a state assist a revolted colony, it is just ground of war on the part of the parent state. Thompson v. Powles, 2 Simon's Rep. 194; Taylor v. Barclay, id. 213 Ante, p. 141, note 95.

1. Garcillasso de la Vega.

2. When, however, we see a party inflamed with deadly hatred against the religion we profess, and a neighboring prince persecuting in consequence the professors of that religion, it is lawful for us to give assistance to the sufferers, — as it was well remarked by James I. of England to Bouillon the ambassador of Mary de Medici, queen-regent of France, — "When my neighbours are attacked in a quarrel in which I am interested, the law of nature requires that I should anticipate and prevent the evil which may thence result to myself." — Le Vassor, History of Louis XIII.

3. See above, § 46, and Bodinus's Republic, book i. c, ix, with his quotations, p.m. 139.


The LAW OF NATIONS - BOOK II.

CHAP. V.

OF THE OBSERVANCE OF JUSTICE BETWEEN NATIONS.

§ 63. Necessity of the observance of justice in human society.

JUSTICE is the basis of all society, the sure bond of all commerce. Human society, far from being an intercourse of assistance and good offices, would be no longer any thing but a vast scene of robbery, if no respect were paid to this virtue, which secures to every one his own. It is still more necessary between nations than between individuals; because injustice produces more dreadful consequences in the quarrels of these powerful bodies politic, and it is more difficult to obtain redress. The obligation imposed on all men to be just is easily demonstrated from the law of nature. We here take that obligation for granted (as being sufficiently known), and content ourselves with observing that it is not only indispensably binding on nations (Prelim. § 5), but even still more sacred with respect to them, from the importance of its consequences.

§ 64. Obligation of all nations to cultivate and observe justice.

All nations are therefore under a strict obligation to cultivate justice towards each other, to observe it scrupulously, and carefully to abstain from every thing that may violate it. Each ought to render to the others what belongs to them, to respect their rights, and to leave them in the peaceable enjoyment of them.1

§ 65. Right of refusing to submit to injustice.

From this indispensable obligation which nature imposes on nations, as well as from those obligations which each nation owes to herself, results the right of every state not to suffer any of her rights to be taken away, or any thing which lawfully belongs to her: for, in opposing this, she only acts in conformity to all her duties; and therein consists the right (§ 49).

§ 66. This right is a perfect one.

This right is a perfect one, — that is to say, it is accompanied with the right of using force in order to assert it. In vain would nature give us a right to refuse submitting to injustice, — in vain would she oblige others to be just in their dealings with us, if we could not lawfully make use of force, when they refused to discharge this duty. The just would lie at the mercy of avarice and injustice, and all their rights would soon become useless.

§ 67. It produces 1. The right of defence.

From the foregoing right arise, as distinct branches, first, the right of a just defence, which belongs to every nation, — or the right of making use of force against whoever attacks her and her rights. This is the foundation of defensive war.

§ 68.2 The right of doing ourselves justice.

Secondly, the right to obtain justice by force, if we cannot obtain it otherwise, or to pursue our right by force of arms. This is the foundation of offensive war.

§ 69. The right of punishing injustice.

An intentional act of injustice is undoubtedly an injury. We have, then, a right to punish if, as we have shown above, in speaking of injuries in general (§ 52). The right of refusing to suffer injustice is a branch of the right to security.

§ 70. Right of all nations against one that openly despises justice.

Let us apply to the unjust what we have said above (§ 53) of a mischievous nation. If there were a people who made open profession of trampling justice under foot, — who despised and violated the rights of others whenever they found an opportunity, — the interest of human society would authorize all the other nations to form a confederacy in order to humble and chastise the delinquents. We do not here forget the maxim established in our Preliminaries, that it does not belong to nations to usurp the power of being judges of each other. In particular cases, where there is room for the smallest doubt, it ought to be supposed that each of the parties may have some right: and the injustice of the party that has committed the injury may proceed from error, and not from a general contempt of justice. But if, by her constant maxims, and by the whole tenor of her conduct, a nation evidently proves herself to be actuated by that mischievous disposition, — if she regards no right as sacred, — the safety of the human race requires that she should be repressed. To form and support an unjust pretension, is only doing an injury to the party whose interests are affected by that pretension; but, to despise justice in general, is doing an injury to all nations.


1. Might not his duty be extended to the execution of sentences passed in other countries according to the necessary and usual forms? — On this subject M. Van Beuningin wrote as follows to M. DeWitt, Oct. 15, 1666: "By what the courts of Holland have dec reed in the affair of one Koningh, of Rotterdam, I see they suppose that every judgment pronounced by the parliaments of France against the inhabitants of Holland in judicio contradictorio, ought to be executed on requisition made by those parliaments. Bull do not know that the tribunals of this country act in the same manner with respect to sentences passed in Holland; and, if they do not, an agreement might be made, that sentences passed on either side against subjects of the other state shall only take effect on such property as the condemned party is found to possess in the state where the sentence has been given.


The LAW OF NATIONS - BOOK II.

CHAP. VI.

OF THE CONCERN A NATION MAY HAVE IN THE ACTIONS OF HER CITIZENS.

§ 71. The sovereign ought to revenge the injuries of the state, and to pro

WE have seen in the preceding chapters what are the common duties of nations towards each other, — how they ought mutually to respect each other, and to abstain from all injury and all offence, — and how justice and equity ought to reign between them in their whole conduct. But hitherto we have only considered the actions of the body of the nation, of the state, of the sovereign. Private persons who are members of one nation, may offend and ill-treat the citizens of another, and may injure a foreign sovereign: — it remains for us to examine what share a state may have in the actions other citizens, and what are the rights and obligations of sovereigns in this respect.

Whoever offends the state, injures its rights, disturbs its tranquillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and exposes himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is, safety.

§ 72. He ought not to suffer his subjects to offend other nations or their citizens.

But, on the other hand, the nation or the sovereign ought not to suffer the citizens to do an injury to the subjects of another state, much less to offend that state itself: and this, not only because no sovereign ought to permit those who are under his command to violate the precepts of the law of nature, which forbids all injuries, — but also because nations ought mutually to respect each other, to abstain from all offence, from all injury, from all wrong, — in a word, from every thing that may be of prejudice to others. If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation than if he injured it himself. In short, the safety of the state, and that of human society, requires this attention from every sovereign. If you let loose the reins to your subjects against foreign nations, these will behave in the same manner to you; and, instead of that friendly intercourse which nature has established between all men, we shall see nothing but one vast and dreadful scene of plunder between nation and nation.

§ 73. The acts of individuals are not to be imputed to the nation.

However, as it is impossible for the best regulated state, or for the most vigilant and absolute sovereign, to model at his pleasure all the actions of his subjects, and to confine them on every occasion to the most exact obedience, it would be unjust to impute to the nation or the sovereign every fault committed by the citizens. We ought not, then, to say, in general, that we have received an injury from a nation because we have received it from one of its members.

§ 74. unless it approves or ratifies them.

But, if a nation or its chief approves and ratifies the act of the individual, it then becomes a public concern; and the injured party is to consider the nation as the real author of the injury, of which the citizen was perhaps only the instrument.

§ 75. Conduct to be observed by the offended party.

If the offended state has in her power the individual who has done the injury, she may without scruple bring him to justice and punish him. If he has escaped and returned to his own country, she ought to apply to his sovereign to have justice done in the case.

§ 76. Duty of the aggressor's sovereign.

And, since the latter ought not to suffer his subjects to molest the subjects of other states, or to do them an injury, much less to give open, audacious offence to foreign powers, he ought to compel the transgressor to make reparation for the damage or injury, if possible, or to inflict on him an exemplary punishment; or, finally, according the nature and circumstances of the case, to deliver him up to the offended state, to be there brought to justice. This is pretty generally observed with respect to great crimes, which are equally contrary to the laws and safety of all nations. Assassins, incendiaries, and robbers, are seized everywhere, at the desire of the sovereign in whose territories the crime was committed, and are delivered up to his justice. The matter is carried still farther in states that are more closely connected by friendship and good neighbourhood. Even in cases of ordinary transgressions, which are only subjects of civil prosecution, either with a view to the recovery of damages, or the infliction of a slight civil punishment, the subjects of two neighbouring states are reciprocally obliged to appear before the magistrate of the place where they are accused of having failed in their duty. Upon a requisition of that magistrate, called Letter Rogatory, they are summoned in due form by their own magistrates, and obliged to appear. An admirable institution, by means of which many neighbouring states live together in peace, and seem to form only one republic! This is in force throughout all Switzerland. As soon as the Letters Rogatory are issued in form, the superior of the accused is bound to enforce them. It belongs not to him to examine whether the accusation be true or false: he is to presume on the justice of his neighbour, and not suffer any doubts on his own part to impair an institution so well calculated to preserve harmony and good understanding between the states. However, if by constant experience he should find that his subjects are oppressed by the neighbouring magistrates who summon them before their tribunals, it would undoubtedly be right in him to reflect on the protection due to his people, and to refuse the rogatories till satisfaction were given for the abuses committed, and proper steps taken to prevent a repetition of them. But, in such case, it would be his duty to allege his reasons, and set them forth in the clearest point of view.

§ 77. If he refuses justice, he becomes a party in the fault and offence.

The sovereign who refuses to cause reparation to be made for the damage done by his subject, or to punish the offender, or, finally, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it. But, if he delivers up either the property of the offender, as an indemnification, in cases that will admit of pecuniary compensation — or his person, in order that he may suffer the punishment due to his crime, the offended party has no further demand on him. King Demetrius, having delivered to the Romans those who had killed their ambassador, the senate sent them back, resolving to reserve to themselves the liberty of punishing that crime, by avenging it on the king himself, or on his dominions.1 If this was really the case and if the king had no share in the murder of the Roman ambassador, the conduct of the senate was highly unjust, and only worthy of men who sought but a pretext to cover their ambitious enterprises.

§ 78. Another case in which the nation is guilty of the crimes of the citizens.

Finally, there is another case where the nation in general is guilty of the crimes of its members. That is, when, by its manners, and by the maxims of its government, it accustoms and authorize its citizens indiscriminately to plunder and maltreat foreigners, to make inroads into the neighbouring countries, &c. Thus, the nation of the Usbecks is guilty of all the robberies committed by the individuals of which it is composed. The princes whose subjects are robbed and massacred, and whose lands are infested by those robbers, may justly level their vengeance against the nation at large.(106) Nay, more; all nations have a right to enter into a league against such a people, to repress them, and to treat them as the common enemies of the human race. The Christian nations would be no less justifiable in forming a confederacy against the states of Barbary, in order to destroy those haunts of pirates, with whom the love of plunder, or the fear of just punishment, is the only rule of peace and war. But these piratical adventurers are wise enough to respect those who are most able to chastise them; and the nations that are able to keep the avenues of a rich branch of commerce open for themselves, are not sorry to see them shut against others.


1. See Polybius, quoted by Barbeyrac, in his notes on Grotius, book iii, chap. xxiv. § vi.

(106) It was on this ground that the French nation so recently took possession of Algiers. — C.


The LAW OF NATIONS - BOOK II.

CHAP. VII.

EFFECTS OF THE DOMAIN BETWEEN NATIONS.

§ 79. General effect of the domain.

WE have explained, in Chap. XVIII. Book I., how a nation takes possession of a country, and at the same time gains possession of the domain and the government thereof. That country, with every thing included in it, becomes the property of the nation in general. Let us now see what are the effects of this property, with respect to other nations. The full domain is necessarily a peculiar and exclusive right; for, if I have a full right to dispose of a thing as I please, it thence follows that others have no right to it at all, since, if they had any, I could not freely dispose of it. The private domain of the citizens may be limited and restrained in several ways by the laws of the state, and it always is so by the eminent domain of the sovereign; but the general domain of the nation is full and absolute, since there exists no authority upon earth by which it can be limited: it therefore excludes all light on the part of foreigners. And, as the rights of a nation ought to be respected by all others (§ 64), none can form any pretensions to the country which belongs to that nation, nor ought to dispose of it without her consent, any more than of the things contained in the country.

§ 80. What is comprehended in the domain of a nation.

The domain of the nation extends to every thing she possesses by a just title: it comprehends her ancient and original possessions, and all her acquisitions made by means which are just in themselves, or admitted as such among nations, — concessions, purchases, conquests made in the regular war, &c. And by her possessions we ought not only to understand her territories, but all the rights she enjoys.

§ 81. The property of the citizens is the property of the nation, with respect to foreign nations.

Even the property of the individuals is, in the aggregate, to be considered as the property of the nation, with respect to other states. It, in some sort, really belongs to her, from the right she has over the property of her citizens, because it constitutes a part of the sum total of her riches, and augments her power. She is interested in that property by her obligation to protect all her members. In short, it cannot be otherwise, since nations act and treat together as bodies in their quality of political societies, and are considered as so many moral persons. All those who form a society, a nation being considered by foreign nations as constituting only one whole, one single person, — all their wealth together can only be considered as the wealth of that same person. And this is to true, that each political society may, if it pleases, establish within itself a community of goods, as Campanella did in his republic of the sun. Others will not inquire what it does in this respect: its domestic regulations make no change in its rights with respect to foreigners nor in the manner in which they ought to consider the aggregate of its property, in what way soever it is possessed.

§ 82. A consequence of this principle.

By an immediate consequence of this principle, if one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation until the debt be discharged. This maxim is of great use, as shall hereafter be shown.

§ 83. Connection of the domain of the nation with the sovereignty.

The general domain of the nation over the lands she inhabits is naturally connected with the empire; for, in establishing herself in a vacant country, the nation certainly does not intend to possess it in subjection to any other power: and, can we suppose an independent nation not vested with the absolute command in her domestic concerns? thus, we have already observed (Book I, § 205), that, in taking possession of a country, the nation is presumed to take possession of its government at the same time. We shall here proceed further, and show the natural connection of these two rights in an independent nation. How could she govern herself at her own pleasure in the country she inhabits, if she cannot truly and absolutely dispose of it? And how could she have the full and absolute domain of a place where she has not the command? Another's sovereignty, and the rights it comprehends, must deprive her of the free disposal of that place. Add to this the eminent domain which constitutes a part of the sovereignty (Book 1, § 244), and you will the better perceive the intimate connection existing between the domain and the sovereignty of the nation. And, accordingly, what is called the high domain, which is nothing but the domain of the body of the nation, or of the sovereign who represents it, is everywhere considered as inseparable from the sovereignty. The useful domain, or the domain confined to the rights that may belong to an individual in the state, may be separated from the sovereignty: and nothing prevents the possibility of its belonging to a nation in places that are not under her jurisdiction. Thus, many sovereigns have fiefs, and other possessions, in the territories of another prince: in these cases they possess them in the manner of private individuals.

§ 84. Jurisdiction.

The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her sovereign, to exercise justice in all the places under her jurisdiction, to take cognisance of the crimes committed, and the differences that arise in the country.

Other nations ought to respect this right. And, as the administration of justice necessarily requires that every definitive sentence, regularly pronounced, be esteemed just, and executed as such, — when once a cause in which foreigners are interested has been decided in form, the sovereign of the defendants cannot hear their complaints. To undertake to examine the justice of a definitive sentence is an attack on the jurisdiction of him who has passed it. The prince, therefore, ought not to interfere in the causes of his subjects in foreign countries, and grant them his protection, excepting in cases where justice is refused, or palpable and evident injustice done, or rules and forms openly violated, or, finally, an odious distinction made, to the prejudice of his subjects, or of foreigners in general. The British court established this maxim with great strength of evidence, on occasion of the Prussian vessels seized and declared lawful prizes during the last war.1 What is here said has no relation to the merits of that particular cause, since they must depend on facts.

§ 85. Effects of the jurisdiction in foreign countries. (107)

In consequence of these rights of jurisdiction, the decisions made by the judge of the place within the extent of his power ought to be respected, and to take effect even in foreign countries. For instance, it belongs to the domestic judge to nominate tutors and guardians for minors and idiots. The law of nations, which has an eye to the common advantage and the good harmony of nations, requires, therefore, that such nomination of a tutor or guardian be valid, and acknowledged in all countries where the pupil may have any concerns. Use was made of this maxim in the year 1672, even with respect to a sovereign. The abbé D'Orléans, sovereign prince of Neufchatel, in Switzerland, being incapable of managing his own affairs, the king of France appointed, as his guardian, his mother, the duchess-dowager of Longueville. The duchess of Nemours, sister to that prince, laid claim to the guardianship for the principality of Neufchatel: but the title of the duchess of Longueville was acknowledged by the three estates of the country. Her counsel rested her cause on the circumstances of her having been nominated guardian by the domestic judge.2 This was a very wrong application of a just principle: for, the prince's domestic residence could be no where but in his state: and it was only by the decree of the three estates, who alone had a right to choose a guardian for their sovereign, that the authority of the duchess of Longueville became firm and lawful at Neufchatel.

In the same manner the validity of a testament, (108) as to its form, can only be decided by the domestic judge, whoso sentence delivered in form ought to be everywhere acknowledged. But, without affecting the validity of the testament itself, the bequests contained in it may be disputed before the judge of the place where the effects are situated, because those effects can only be disposed of conformably to the laws of the country. Thus, the abbé D'Orléans above mentioned having appointed the prince of Conti his universal legatee, — the three estates of Neufchatel, without waiting till the parliament of Paris should pronounce their decision on the question of two contradictory wills made by the abbé D'Orléans, gave the investiture of the principality to the duchess of Nemours, — declaring that the sovereignty was unalienable. Besides, it might have been said on this occasion also, that the domestic residence of the prince could be nowhere but in the state.

§ 86. Desert and uncultivated places.

As every thing included in the country belongs to the nation, — and, as none but the nation, or the person on whom she has devolved her right, is authorized to dispose of those things (§ 79), — if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her; she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property. It is, however, necessary to recollect here what we have observed above (Book I. § 81). No nation can lawfully appropriate to herself a too disproportionate extent of country, and reduce other nations to want subsistence, and a place of abode. A German chief, in the time of Nero, said to the Romans, "As heaven belongs to the gods, so the earth is given to the human race; and desert countries are common to all,"3 — giving those proud conquerors to understand that they had no right to reserve and appropriate to themselves a country which they left desert. The Romans had laid waste a chain of country along the Rhine, to cover their provinces from the incursions of the barbarians. The German's remonstrance would have had a good foundation, had the Romans pretended to keep without reason a vast country which was of no use to them: but those lands which they would not suffer to be inhabited, serving as a rampart against foreign nations, were of considerable use to the empire.

§ 87. Duty of the nation in this respect.

When there is not this singular circumstance, it is equally agreeable to the dictates of humanity, and to the particular advantage of the state, to give those desert tracts to foreigners who are willing to clear the land and to render it valuable. The beneficence of the state thus turns to her own advantage; she acquires new subjects, and augments her riches and power. This is the practice in America; and, by this wise method, the English have carried their settlements in the new world to a degree of power which has considerably increased that of the nation. Thus, also, the king of Prussia endeavours to re-people his states laid waste by the calamities of former wars.

§ 88. Right of possessing things that have no owner.

The nation that possesses a country is at liberty to leave in the primitive state of communion certain things that have as yet no owner, or to appropriate to herself the right of possessing those things, as well as every other advantage which that country is capable of affording. And, as such a right is of use, it is, in case of doubt, presumed that the nation has reserved it to herself. It belongs to her, then, to the exclusion of foreigners, unless her laws expressly declare otherwise; as those of the Romans, which left wild beasts, fish, &c., in the primitive state of communion. No foreigner, therefore, has a natural right to hunt or fish in the territories of a state, to appropriate to himself a treasure found there, &c.

§ 89. Rights granted to another nation.

There exists no reason why a nation, or a sovereign, if authorized by the laws, may not grant various privileges in their territories to another nation, or to foreigners in general, since every one may dispose of his own property as he thinks fit. Thus, several sovereigns in the Indies have granted to the trading nations of Europe the privilege of having factories, ports, and even fortresses and garrisons in certain places within their dominions. We may in the same manner grant the right of fishing in a river, or on the coast, that of hunting in the forests, &c., and, when once these rights have been validly ceded, they constitute a part of the possessions of him who has acquired them, and ought to be respected in the same manner as his former possession.

§ 90. It is not allowable to drive a nation out of a country which it inhabits.

Whoever agrees that robbery is a crime, and that we are not allowed to take forcible possession of our neighbour's property, will acknowledge, without any other proof, that no nation has a right to expel another people from the country they inhabit, in order to settle in it herself. Notwithstanding the extreme inequality of climates and soils, every people ought to be contented with that which has fallen to their share. Will the conductors of nations despise a rule that constitutes all their safety in civil society? Let this sacred rule be entirely forgotten, and the peasant will quit his thatched cottage to invade the palaces of the great, or the delightful possessions of the rich. The ancient Helvetians, discontented with their native soil, burned all their habitations, and commenced their march, in order to establish themselves, sword in hand, in the fertile plains of southern Gaul. But they received a terrible lesson from a conqueror of superior abilities to themselves, and who paid still less regard to the laws of justice. Cæsar defeated them, and drove them back into their own country. Their posterity, however, more wise than they, confine their views to the preservation of the lands and the independence they have received from nature: they live contented, and the labour of free hands counterbalances the sterility of the soil.

§ 91. to extend by violence the bounds of empire.

There are conquerors, who, aspiring after nothing more than the extension of the boundaries of their dominions, without expelling the inhabitants from a country, content themselves with subduing them; — a violence less barbarous, but not less unjust: while they spare the property of individuals, they seize all the rights of the nation, and of the sovereign.

§ 92. The limits of territories ought to be carefully settled.

Since the least encroachment on the territory of another is an act or injustice, — in order to avoid the commission of any such act, and to prevent every subject of discord, every occasion of quarrel, the limits of territories ought to be marked out with clearness and precision. If those who drew up the treaty of Utrecht had bestowed on so important a subject all the attention it deserved, we should not see France and England in arms, in order to decide by a bloody war what are to be the boundaries of their possessions in America. But the makers of treaties often designedly leave in them some obscurity, some uncertainty, in order to reserve for their nation a pretext for a rupture: — an unworthy artifice in a transaction wherein good faith alone ought to preside! We have also seen commissioners endeavouring to overreach or corrupt those of a neighbouring state, in order to gain for their master an unjust acquisition of a few leagues of territory. How can princes or ministers stoop to dirty tricks that would dishonour a private man?

§ 93. Violation of territory.

We should not only refrain from usurping the territory of others; we should also respect, and abstain from every act contrary to the rights of the sovereign: for, a foreign nation can claim no right in it (§ 79). We cannot, then, without doing an injury to a state, enter its territories with force and arms in pursuit of a criminal, and take him from thence. This would at once be a violation of the safety of the state, and a trespass on the rights of empire or supreme authority vested in the sovereign. This is what is called a violation of territory; and among nations there is nothing more generally acknowledged as an injury that ought to be vigorously repelled by every state that would not suffer itself to be oppressed. We shall make use of this principle in speaking of war, which gives occasion for many questions on the rights of territory.

§ 94. Prohibition to enter the territory.(109)

The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases, or to certain persons or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country. Formerly the Chinese, fearing lest the intercourse of strangers should corrupt the manners of the nation, and impair the maxims of a wise but singular government, forbade all people entering the empire: a prohibition that was not at all inconsistent with justice, provided they did not refuse human assistance to those whom tempest or necessity obliged to approach their frontiers. It was salutary to the nation, without violating the rights of any individual, or even the duties of humanity, which permits us, in case of competition, to prefer ourselves to others.

§ 95. A country possessed by several nations at the same time.

If at the same time two or more nations discover and take possession of an island or any other desert land without an owner, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled.

§ 96. A country possessed by a private person.

An independent individual, whether he has been driven from his country, or has legally quitted it of his own accord, may settle in a country which he finds without an owner, and there possess an independent domain. Whoever would afterwards make himself master of the entire country, could not do it with justice without respecting the rights and independence of this person. But, if he himself finds a sufficient number of men who are willing to live under his laws, he may form a new state within the country he has discovered, and possess there both the domain and the empire. But, if this individual should arrogate to himself alone an exclusive right to a country, there to reign monarch without subjects, his vain pretensions would be justly held in contempt: — a rash and ridiculous possession can produce no real right.

There are also other means by which a private person may found a new state. Thus, in the eleventh century, some Norman noblemen founded a new empire in Sicily, after having wrested that island by conquest from the common enemies of the Christian name. The custom of the nation permitted the citizens to quit their country in order to seek their fortune elsewhere.

§ 97. Independent families in a country.

When several independent families are settled in a country, they posess the free domain, but without sovereignty, since they do not form a political society. Nobody can seize the empire of that country; since this would be reducing those families to subjection against their will; and no man has a right to command men who are born free, unless they voluntarily submit to him.

If those families have fixed settlements, the place possessed by each is the peculiar property of that family: the rest of the country of which they make no use, being left in the primitive state of communion, belongs to the first occupant. Whoever chooses to settle there, may lawfully take possession of it.

Families wandering in a country, as the nations of shepherds, and ranging through it as their wants require, possess it in common: it belongs to them to the exclusion of all other nations; and we cannot, without injustice, deprive them of the tracts of country of which they make use. But, let us here recollect what we have said more than once (Book I. §§ 81 and 209, Book II. § 69). The savages of North America had no right to appropriate all that vast continent to themselves; and since they were unable to inhabit the whole of those regions, other nations might, without injustice, settle in some parts of them, provided they left the natives a sufficiency of land. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them. Nevertheless, no other nation has a right to narrow their boundaries, unless she be under an absolute want of land. For, in short, they possess their country; they make use of it after their manner; they reap from it an advantage suitable to their manner of life, respecting which they have no laws to receive from any one. In a case of pressing necessity, I think people might, without injustice, settle in a part of that country, on leading the Arabs the means of rendering it, by the cultivation of the earth, sufficient for their own wants, and those of the new inhabitants.

§ 98. Possession of certain places only, or of certain rights, in a vacant country.

It may happen that a nation is contented with possessing only certain places, or appropriating to itself certain rights, in a country that has not an owner, without being solicitous to take possession of the whole country. In this case, another nation may take possession of what the first has neglected; but this cannot be done without allowing all the rights acquired by the first to subsist in their full and absolute independence. In such cases, it is proper that regulations should be made by treaty; and this precaution is seldom neglected among civilized nations.


1. See the report made to the King of Great Britain by Sir George Lee, Dr. Paul, Sir Dudley Ryder, and Mr. Murray. It is an excellent piece on the law of nations.

(107) This principle appears to be now settled by the law and practice of nations; but, nevertheless, subject to certain general wholesome rules, essential to be adhered to in order to prevent the effect of partial and unjust sentences and decisions. The respected decisions which have given rise to discussion, have principally been in foreign Courts of Admiralty, or Prize Courts; and the law respecting them has been better settled by the decisions of Sir W. Scott and Sir J. Nichol, so universally respected than at any other period of history. By the long established doctrine in England, and by the more recent general practice of European nations, a sentence of condemnation, pronounced in a court of competent jurisdiction, is essential, completely to transfer the legal interest in property captured as prize, (per Sir W. Scott, in the Flad Oyen 1 Rob. Rep. 115). And, in order to constitute a legal prize-court to pronounce a binding sentence, by the law of nations, certain requisites are essential. The celebrated report drawn up by Lord Mansfield and signed by him and other very eminent personages as their opinion, contains much of the law of nations upon the subject. (See Postle. Universal Dict. of Trade and Commerce, article Silesia, 4th ed.; and 1 Col. Jurid. 133; and see Lindo v. Rodney, 2 Doug. 613, and Le Caux v. Eden, id. 594.) One rule was there laid down, that the condemnation must have been pronounced by a court belonging to the belligerent country. (See id., and Havelock v. Rockwood, Atcheson's Rep. 7 & 8; 8 Term Re. 288; 1 Col. Jurid. 130.) Secondly, the court must have, at the time it pronounced sentence of condemnation, actually sat in the country to which it belonged, and not within the dominions of any foreign prince, whether neutral or an ally; for, otherwise, a captor might have innumerable seats of war, and elude the fair chance of recaption whilst the vessel or property was in progress towards a proper condemning port (Havelock v. Rockwood, Atcheson's Rep. 8 & 49; The Flad Oyen, 1 Rob. Rep. 115, 8 Term Rep. 270, in notes.) Thirdly, the ship or other property condemned as prize must, at the time of condemnation, in general, be actually in the country where the sentence was pronounced. — Per Sir. W. Scott, in The Flad Oyen. 1 Rob. Rep. 115, where see some exceptions; and see also Havelock v. Rockwood. Atch. Rep. 49; (Jolly v. The Neptune, 2 Pet. Adm. Dec. 345; Findlay v. The William, 1 Pet. Adm. Dec. 12.) See other cases in 1 Harrison's Index, pp. 687 to 689,

By the marine law of England, as practised in the High Court of Admiralty, it was formerly held that there was no change of property in case of recaption, so as to bar the original owner in favour of a vendee or recaptor, until there had been a sentence of condemnation (2 Burr. 696; Undo v. Rodney & another, 2 Douglas, 616; 1 Rob. Rep. 139) and now by statutes 13 Geo. 2, c. 4, s. 18, and 29 Geo. 2, c. 34, s. 24, in case of recapture, the jus Postliminii is extended, and continues forever, upon payment of certain salvage, which is regulated and fixed by 33 Geo. 3, c. 66, s. 42. (See 2 Burr. 696, 1209, &c) And, when the private property of an allied sovereign is recaptured from the enemy, it is to be restored to him free from salvage, or even expense — (Alexander, 2 Dodson's Rep. 37). With respect to the effect in England of foreign judgments, decrees, and sentences, the present general rule is, that, if they were decided in a foreign court, of competent jurisdiction, they shall be admitted as prima facie valid and binding on the parties in all other countries, but not conclusively so. (See the cases referred to in note (a) to Novelli v. Ross, 2 Barn. & Adolph. 765; and see Frankland v. McGusty, Knapp's Rep. 295; 1 Ves. 159; 2 Strange 733; 2 Bing. 380; 3 Bing. 353; 4 Barn, & Cres. 637; Tarleton v. Tarleton, 4 Maule & Sel. 20; Kennedy v. Cassilus. 2 Swanst. 325); {Calhoun v. Fitzsimmons, 1 Bin. Rep. 293; Calbreath v. Gracy, 1 Wash. C.C. Rep. 219.) And it was held, that a decree of the sale of a ship made in an American court of competent jurisdiction, pending war with this country, was to be received in the Court of Admiralty in England as legally operative. (The Experiments, 2 Dods. Rep. 46, 47); {Thirty, &c. v. Boyle, 9 Cranch, 191}. So, a marriage, established by the sentence of a foreign court having proper jurisdiction, has even been considered as conclusive by the law of nations (Roach v. Gavan, 1 Ves. sen. 159); {Story, Conf. Laws. p. 103, ed. 1834}; and it was laid down by De Grey, C.J. that the judgment of a court of competent jurisdiction directly upon a point, is, as a plea, a bar, or, as evidence, conclusive, between the same parties upon the same matter directly in question in another court. (See Duchess of Kingston's case, 20 Howell's state Trials, 538; and see Bul. N. Pri. 244; Phillips v. Hunter, 2 Hen. Bla. 402. per Eyre, C.J.; and see, as to that point, 1 Phillips on Evid. part ii. c. 2 and 3, {vol.4, Am. ed. 18839, New York, pages 856 to 915}; and Starkle on Evid. part ii. §§ 67, 68; Frankland v. McGusty, 1 Knapp's Rep. 274; Buchanan v. Rucker, 1 Campb. 63. 180, n., 9 East, 192, S.C.; Sadler v. Robins, id. 280, 253; Cavan v. Stewart, 1 Stark. Rep. 525; and see 1 Chitty's Com. L 61 to 65.) But such foreign decision is not conclusive like the judgement of a court of record in England; and, therefore, if a man recover a judgment or sentence in France for money due to him, the debt must be considered here in England as only a simple contract debt, and the statute of limitations wilt run upon it (Dupleix v. De Rowen, 2 Vern. 540); and the sentence of a court of summary jurisdiction in France cannot be pleaded to a bill in Chancery in England for the same matter. (Gage v. Bulkeley, 3 Atk. 215); and it should seem, that even a recovery of a judgment upon a bond in a foreign country is no bar to an action here on the same bond. (Foster v. Vassall, 3 Atk. 589, decided upon an Irish bond and judgment before the Union.) It is true that there are cases which seem to decide that such foreign judgments are conclusive. (See Newland v. Horseman, 1 Vern. 21.) In a late case the Vice Chancellor held that the grounds of a foreign judgment cannot be reviewed in the courts of this country, and that, therefore, a bill for a discovery and a commission to examine witnesses in Antigua, in aid of the parties' defence to an action brought on the judgment in this country, was demurrable. (Martin v. Nicholls, 3 Simon's Rep. 458, cited by Parke, J., in Bequest v. McCarthy, 2 Barn. & Adol. 954; see also Kennedy v. Cassilis, 2 Swans. 326.) But that doctrine is not sustainable, and, therefore, upon an appeal to the Privy Council from a decree of the court of justice at Demerara, such decree being for a sum of money alleged to be due on foreign judgments, was reversed, on the ground that such court of justice had erroneously determined that those judgments were conclusive when they were only prima facie evidence of the debt, and it was competent to the original defendant to show that the judgment had been improperly obtained. (Frankland v. McGusty and Others, Knapp's Rep. 274.) If, therefore, a foreign judgment appear upon the face of it to have proceeded, either wholly in the defendant's absence, and without his having had any opportunity of knowing of the proceeding, and defending it, and, therefore, manifestly against justice; or if the decision has manifestly proceeded upon false premises, or in adequate reasons, or upon a mistake of local or foreign law, and which ought to have occasioned a different decision (Novelli v. Ross, 2 Barn. & Adol. 757); or, even if either of those objections be shown by extrinsic evidence (Frankland v. McGusty, Knapp's Rep. 274 to 310; semble, overruling the contrary decision in Martin v. Nicolls, 3 Simon's Rep. 456, and 2 Swans. 326); Then, it seems now to be clearly settled, at least in England, that the foreign decision will not be binding or valid — (id. ibid.) Thus, it was recently held, that where the French courts had in their decrees, on the face of them, mistaken the law of England as to the effect of a cancellation of the acceptance of a hill by mistake, and had, on that ground, and contrary to the English law, adjudged that the defendant, as well as the plaintiff, was discharged from liability by such cancellation, when, according to the English law, they remained liable, it was held, in the Court of King's Bench in England, that the defendant was still liable to be sued by the plaintiff for the debt in respect of which the bills were given, notwithstanding the decree, (Novelli v. Rossi, 2 Barn. & Adolp. 757.) And, upon appeal to the Privy Council, a decree of the court of justice of Demerara, for a sum of money due upon three foreign judgments in St. Vincent's, was reversed, on the ground that those judgments had been improperly obtained, (Frankland v. McGusty. Knapp's Rep. 274.) So, if it appear on the face of the proceedings, or otherwise, that the defendant in the foreign court was absent from the country before the suit was commenced, the judgment against him may be deemed invalid. (Buchanan v. Rucker, 1 Campb. 63, 9 East Rep. 192; Cavan v. Stewart, 1 Stark, Rep. 525; Frankland v. McGusty, Knapp's Rep. 304.) But, to render a foreign judgment void, on the ground that it Is contrary to the law of the country where it was given, or to reason and justice, it must be shown clearly and equivocally to be so. (Becquet v. McCarthy, 3 Barn, & Adolp. 951.) But, if the error do not appear upon the face of the proceeding and the party complaining of the judgment himself was misled, and submitted to the decision instead of protesting against it, he is too late to complain upon an appeal against it. (Macallister v. Macallister, 4 Wilson & Shaw, 142, 147.) And where the law of a British colony required, that, on a suit instituted against an absent party, the process should be served upon the King's Attorney-General in the colony, but it was not expressly provided that the Attorney General should communicate with the absent party; it was held, that such law was not so contrary to national justice as to render void a judgment obtained against a party who had resided within the jurisdiction of the court at the time when the cause of action accrued, but had withdrawn himself before the proceedings were commenced. (Ibid.; Douglas v. Forrest, 4 Bing. 686; 1 Moore & Pay. 663.) So, horning in Scotland (though the party was absent), was held legal, where the defendant had been domiciled in that country, and had left property there. (Douglas v. Forrest.)

In England, the judgment of an English court of record, however inferior, is conclusive, until reversed by writ of error (1 Doug. 5), and even English judgments of inferior courts, not of record, are to some purposes conclusive, unless it appear upon the face of the proceedings to have been unfairly obtained (2 Burr. 1009; 2 Bing. 216). But the judgment of an inferior court may be controverted, when it appears that the proceedings have been bad in law, as, where a summons and attachment, which ought to have been successive proceedings, in default of appearance to the former, were issued against the defendant at the same time, and returnable at the same time, and to which the defendant never appeared (3 Bar. & Cres. 772; 5 Dowl. & Ryl. 719, S.C.); and it seems that the judgment of an inferior court may be avoided, by proof that the cause of action did not arise within the jurisdiction of the court. (Willes, 36 n.; 2 Big. 213.)

With respect to the proof of foreign judgments and decrees in England, it has been decided, that an exemplification of a sentence in Holland under the common seal of the States, may be read in evidence in a suit in Chancery. Anon. 9 Mod. 56.

2. Memorial in behalf of the duchess of Longueville, 1672.

(108) See post Book II. ch. VIII. § 103, p. 173 and § 111, p. 175.

It is now settled in Great Britain that a will is to be construed, interpreted, and given effect to, according to the law of the country where it was made and where the testator had his domicile, and every court in every country is bound to construe it accordingly. (Trotter v. Trotter, 3 Wilson & Shaw, Rep. on Appeal Cases, 407, 414, — in House of Lords appeal from Scotland.) And, therefore, where a natlve of Scotland, domiciled in India, but who possessed heritable bonds in Scotland, as well as personal property there, and also, in lndia, having executed a will in India, ineffectual to convey Scotch heritage; and a question having arisen whether his heir-at-law (who claimed the heritable bonds as heir) was also entitled to a share of the movable property, as legatee under the will — it was held in the House of Lords, in England (affirming the judgment of the court below), that the construction of the will, as to whether it expressed an intention to pass the Scotch heritable bonds, and the legal consequences of that construction, must be determined by the law of the land where if was made, and where the testator had his domicile, namely India, that is, by the law of England; and this although the will was the subject of judicial inquiry in the courts of Scotland; for, these courts also are bound to decide according to the law of the place where the will was made, (Id. ibid. 414.) "A will must be interpreted according to the law of the country where it is made, and where the party making the will has his domicile. There are certain rules of construction adopted in the courts, and the expressions which are made use of in a will, and the language of a will, have frequently reference to those rules of construction; and it would be productive, therefore, of the most mischievous consequences, and in many instances defeat the intention of the testator if those rules were to be altogether disregarded, and the judges of a foreign court (which it may be considered, in relation to the will), without reference to that knowledge which it is desirable to obtain of the law of the country in which the will was made, were to interpret the will according to their own rules of construction, that would also be productive of another inconvenience, namely, that the will might have a construction put upon it in the English courts different from that which might be put upon it in the foreign country. It appears to me, my Lords, that there is no solid ground for the objection; but that, where a will is executed in a foreign country by a person having his domicile in that country, with respect to that person's property, the will must be interpreted according to the law of the country where it is made; it must, if it comes into question, in any proceeding, have the same interpretation put upon it as would be put upon it in any tribunal of the country where it was made." — Per Lord Chancellor.

But, where a will was made by a native of Scotland, domiciled in England, and having personal property only there, and who went for a short time to Scotland, and there executed his will in the Scotch form, and registered it there, and afterwards died in England, it was held that such will must be construed according to the law of England, (Anstruther v. Chalmers, 2 Simons, 1). It should seem, therefore, that in some cases, as respects personalty, the domicile of the testator is to be regarded rather than the precise place of signing the will (id. ibid., sed quere).

A will made in Jamaica devising rents, issues, and profits of an estate there, passes slaves, mules, cattle, and machinery, (3 Simons, 398, Lusington v. Sewell, 1 Simons, 435, S.P.), though a devise of a farm in England would not pass farming utensils (Stewart v. Maryat, 11 Ves. 657.) So, if a Dutchman be possessed of real estate in Holland, and personal estate in England, and devise his real estate to A., and his personal to B., the personal shall be first applied to pay debts in Holland, though real estate is liable there. (Anon. 9 Mod. 66, and see Bowaman v. Reeve, Pre. Ch. 577.) A will of property entirely abroad may be proved there. (Jaunay v. Sealey, 1 Vern. 397.).

3. Sicut cœlum diis, ita terras generi mortalium datas; quæque vacuæ, eas publicas esse. — TACIT.

(109) See further as to the subject of this section, 1 Chit. Com. Law, 73 & 84; Marten's Law of Nations, 153.


The LAW OF NATIONS - BOOK II.

CHAP. VIII.

RULES WITH RESPECT TO FOREIGNERS.

§ 99. General idea of the conduct the state ought to observe towards foreigners.

WE have already treated (Book I. § 213) of the inhabitants, or persons who reside in a country where they are not citizens. We shall here treat only of those foreigners who pass through or sojourn in a country, either on business, or merely as travellers. The relation that subsists between them and the society in which they now live — the objects of their journey, and of their temporary residence — the duties of humanity — the rights, the interest, and the safety of the state which harbours them — the rights of that to which they belong — all these principles, combined and applied according to cases and circumstances, serve to determine the conduct that ought to be observed towards them, and to point out our right and our duty with respect to them. But the intention of this chapter is not so much to show what humanity and justice require towards foreigners, as to establish the rules of the law of nations on this subject — rules tending to secure the rights of all parties, and to prevent the repose of nations being disturbed by the quarrels of individuals.

§ 100. Entering the territory. (110)

Since the lord of the territory may, whenever he thinks proper, forbid its being entered (§ 94), he has, no doubt, a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain. Can it be necessary to add, that the owner of the territory ought, in this instance, to respect the duties of humanity? The case is the same with all rights whatever: the proprietor may use them at his discretion; and, in so doing, he does not injure any person; but, if he would be free from guilt, and keep his conscience pure, he will never use them but in such manner as is most conformable to his duty. We speak here, in general, of the rights which belong to the lord of the country, reserving for the following chapter the examination of the cases in which he cannot refuse an entrance into his territory; and we shall see, in Chap. X., how his duty towards all mankind obliges him, on other occasions to allow a free passage through, and a residence in his state.

If the sovereign annexes any particular condition to the permission to enter his territories, he ought to have measures taken to make foreigners acquainted with it, when they present themselves on the frontier.

There are states, such as China and Japan, into which all foreigners are forbid to penetrate without an express permission; but, in Europe, the access is everywhere free to every person who is not an enemy of the state, except, in some countries, to vagabonds and outcasts.

§ 101. Foreigners are subject to the laws.

But, even in those countries which every foreigner may freely enter, the sovereign is supposed to allow him access only upon this tacit condition, that he be subject to the laws, — I mean the general laws made to maintain good order, and which have no relation to the title of citizen or of subject of the state. The public safety, the rights of the nation and of the prince, necessarily require this condition; and the foreigner tacitly submits to it, as soon as he enters the country, as he cannot presume that he has access upon any other footing. The sovereignly is the right to command in the whole country; and the laws are not simply confined to regulating the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state.

§ 102. And punishable according to the laws.

In virtue of this submission, foreigners who commit faults are to be punished according to the laws of the country. The object of punishment is to cause the laws to be respected, and to maintain order and safety.

§ 103. Who is the judge of their disputes.

For the same reason, disputes that may arise between foreigners, or between a foreigner and a citizen, are to be determined by the judge of the place, and according to the laws of the place.(111) And, as the dispute properly arises from the refusal of the defendant, who maintains that he is not bound to perform what is required of him, it follows, from the same principle, that every defendant ought to be prosecuted before his own judge, who alone has a right to condemn him, and compel him to the performance. The Swiss have wisely made this rule one of the articles of their alliance, in order to prevent the quarrels that might arise from abuses that were formerly too frequent in relation to this subject. The defendant's judge is the judge of the place where that defendant has his settled abode, or the judge of the place where that defendant has his settled abode, or the judge of the place where the defendant is, when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In this last case, as property of that kind is to be held according to the laws of the country where it is situated, and as the right of granting possession is vested in the ruler of the country, disputes relating to such property can only be decided in the state on which it depends.

We have already shown (§ 84) how the jurisdiction of a nation ought to be respected by other sovereigns, and in what cases alone they may interfere in the causes of their subjects in foreign countries.

§ 104. Protection due to foreigners.

The sovereign ought not to grant an entrance into his state for the purpose of drawing foreigners into a snare; as soon as he admits them, he engages to protect them as his own subjects, and to afford them perfect security, as far as depends on him. Accordingly, we see that every sovereign who has given an asylum to a foreigner, considers himself no less offended by an injury done to the latter, than he would be by an act of violence committed on his own subject. Hospitality was in great honour among the ancients, and even among barbarous nations, such as the Germans. Those savage nations who treated strangers ill, that Scythian tribe who sacrificed them to Diana,1 were universally held in abhorrence; and Grotius justly says2 that their extreme ferocity excluded them from the great society of mankind. All other nations had a right to unite their forces in order to chastise them.

§ 105. Their duties.

From a sense of gratitude for the protection granted to him, and the other advantages he enjoys, the foreigner ought not to content himself with barely respecting the laws of the country; he ought to assist it upon occasion, and contribute to its defence, as far as is consistent with his duty as citizen of another state. We shall see elsewhere what he can and ought to do, when the country is engaged in a war. But there is nothing to hinder him from defending it against pirates or robbers, against the ravages of an inundation, or the devastations of fire. Can he pretend to live under the protection of a state, to participate in a variety of advantages that it affords, and yet make no exertion for its defence, but remain an unconcerned spectator of the dangers to which the citizens are exposed?

§ 106. To what burdens they are subject.

He cannot, indeed, be subject to those burdens that have only a relation to the quality of citizens; but he ought to bear his share of all the others. Being exempted from serving in the militia, and from paying those taxes destined for the support of the rights of the nation, he will pay the duties imposed upon provisions, merchandise, &c., and, in a word, every thing that has only a relation to his residence in the country, or to the affairs which brought him thither.

§ 107. Foreigners continue members of their own nation.

The citizen or the subject of a state who absents himself for a time without any intention to abandon the society of which he is a member, does not lose his privilege by his absence: he preserves his rights, and remains bound by the same obligations. Being received in a foreign country, in virtue of the natural society, the communication, and commerce which nations are obliged to cultivate with each other (Prelim. §§ 11, 12; Book II. § 21), he ought to be considered there as a member of his own nation, and treated as such.

§ 108. The state has no right over the person of a foreigner; (112)

The state, which ought to respect the rights of other nations, and in general those of all mankind, cannot arrogate to herself any power over the person of a foreigner, who, though he has entered her territory, has not become her subject. The foreigner cannot pretend to enjoy the liberty of living in the country without respecting the laws: if he violates them, he is punishable as a disturber of the public peace, and guilty of a crime against the society in which he lives: but he is not obliged to submit, like the subjects, to all the commands of the sovereign: and, if such things are required of him as he is unwilling to perform, he may quit the country. He is free at all times to leave it; nor have we a right to detain him, except for a time, and for very particular reasons, as, for instance, an apprehension, in war time, lest such foreigner, acquainted with the state of the country and of fortified places, should communicate his knowledge to the enemy. (113) From the voyages of the Dutch to the East Indies, we learn that the kings of Corea forcibly detain foreigners who are shipwrecked on their coast; and Bodinus assures us,3 that a custom so contrary to the law of nations was practised in his time in Æthiopa, and even in Muscovy. This is at once a violation of the rights of individuals, and of those of the state to which they belong. Things have been greatly changed in Russia; in a single reign — that of Peter the Great — has placed that vast empire in the rank of civilized nations.

§ 109. nor over his property.

The property of an individual does not cease to belong to him on account of his being in a foreign country; it still constitutes a part of the aggregate wealth of his nation (§ 81). Any power, therefore, which the lord of the territory might claim over the property of a foreigner would be equally derogatory to the rights of the individual owner and to those of the nation of which he is a member.(114)

§ 110. Who are the heirs of a foreigner.

Since the foreigner still continues to be a citizen of his own country, and a member of his own nation (§ 107), the property he leaves at his death in a foreign country ought naturally to devolve to those who are his heirs according to the laws of the state of which he is a member. But, notwithstanding this general rule, his immovable effects are to be disposed of according to the laws of the country where they are situated. (See § 103.)

§ 111. Will of a foreigner.

As the right of making a will, or of disposing of his fortune in case of death, is a right resulting from property, it cannot, without injustice, be taken from a foreigner. The foreigner, therefore, by natural right, has the liberty of making a will. But, it is asked, by what laws he is obliged to regulate himself, either in the form of his testament, or in the disposal of his property. 1. As to the form or solemnities appointed to settle the validity of a will it appears that the testator ought to observe those that are established in the country where he makes it, unless it be otherwise ordained by the laws of the state of which he is a member; in which case, he will be obliged to observe the forms which they prescribe, if he would validly dispose of the property he possesses in his own country. I speak here of a will which is to be opened in the place where the person dies; for, if a traveller makes his will, and sends it home under seal, it is the same thing as if it had been written at home; and, in this case, it is subject to the laws of his own country. 2. As to the bequests themselves, we have already observed that those which relate to immovables ought to be conformable to the laws of the country where those immovables are situated. The foreign testator cannot dispose of the goods, movable or immovable, which he possesses in his own country, otherwise than in a manner conformable to the laws of that country. But, as to movable goods, specie, and other effects which he possesses elsewhere, which he has with him, or which follow his person, we ought to distinguish between the local laws, whose effect cannot extend beyond the territory, and those laws which peculiarly affect the character of citizen. The foreigner, remaining a citizen of his own country, is still bound by those last-mentioned laws, wherever he happens to be, and is obliged to conform to them in the disposal of his personal property, and all his movables whatsoever. The laws of this kind, made in the country where he resides at the time, but of which he is not a citizen, are not obligatory with respect to him. Thus, a man who makes his will, and dies in a foreign country, cannot deprive his widow of the part of his movable effects assigned to that widow by the laws of his own country. A Genevan, obliged by the law of Geneva to leave a dividend of his personal property to his brothers or his cousins, if they be his next heirs, cannot deprive them of it by making his will in a foreign country, while he continues a citizen of Geneva; but, a foreigner dying at Geneva is not obliged, in this respect, to conform to the laws of the republic. The case is quite otherwise with respect to local laws: they regulate what may be done in the territory, and do not extend beyond it. The testator is no longer subject to them when he is out of the territory; and they do not affect that part of his property which is also out of it, the foreigner is obliged to observe those laws, in the country where he makes his will, with respect to the goods he possesses there. Thus, an inhabitant of Neufchatel, to whom entails are forbidden in his own country with respect to the property he possesses there, freely makes an entail of the estate he possesses out of the jurisdiction of the country, if he dies in a place where entails are allowed; and, a foreigner making a will at Neufchatel, cannot make an entail of even the movable property he possesses there, — unless, indeed, we may suppose that his movable property is excepted by the spirit of the law.

§ 112. Escheatage

What we have established in the three preceding sections is sufficient to show with how little justice the crown, in some states, lays claim to the effects left there by a foreigner at his death. This practice is founded on what is called escheatage, by which foreigners are excluded from all inheritances in this state, either of the property of a citizen or that of an alien, and, consequently, cannot be appointed heirs by will, nor receive any legacy. Grotius justly observes, that this law has descended to us from those ages when foreigners were almost considered as enemies.4 Even after the Romans were become a very polite and learned people, they could not accustom themselves to consider foreigners as men entitled to any right in common with them. "Those nations," says Pomponius, the civilian, "with whom we have neither friendship, nor hospitality, nor alliance, are not, therefore, our enemies; yet, if any thing belonging to us falls into their hands, it becomes their property; our free citizens become slaves to them; and they are on the same terms with respect to us."5 We cannot suppose that so wise a people retained such inhuman laws with any other view than that of a necessary retaliation, as they could not otherwise obtain satisfaction from barbarous nations, with whom they had no connection or treaties existing, Bodinus shows,6 that escheatage is derived from these worthy sources! It has been successively mitigated, or even abolished, in most civilized states. The emperor Frederic II. first abolished it by an edict, which permitted all foreigners dying within the limits of the empire to dispose of their substance by will, or, if they died intestate, to have their nearest relations for heirs.6 But Bodinus complains that this edict is but ill executed. Why does there still remain any vestige of so barbarous a law in Europe, which is now enlightened and so full of humanity? The law of nature cannot suffer it to be put in practice except by way of retaliation. This is the use made of it by the king of Poland in his hereditary states. Escheatage is established in Saxony; but the sovereign is so just and equitable, that he enforces it only against those nations which subject the Saxons to a similar law.

§ 113. The right of traite foraine.

The right of traite foraine (called in Latin jus detractus) is more conformable to justice and the mutual obligation of nations. We give this name to the right by virtue of which the sovereign retains a moderate portion of the property either of citizens or aliens which is sent out of his territories to pass into the hands of foreigners. As the exportation of that property is a loss to the state, she may fairly receive an equitable compensation for it.

§ 114. Immovable property possessed by an alien.

Every state has the liberty of granting or refusing to foreigners the power of possessing Lands or other immovable property within her territory.(117) If she grants them that privilege, all such property possessed by aliens remains subject to the jurisdiction and laws of the country, and to the same taxes as other property of the same kind. The authority of the sovereign extends over the whole territory; and it would be absurd to except some parts of it, on account of their being possessed by foreigners. If the sovereign does not permit aliens to possess immovable property, nobody has a right to complain of such prohibition; for, he may have very good reasons for acting in this manner: and, as foreigners cannot claim any right in his territories (§ 79), they ought not to take it amiss that he makes use of his power and of his rights in the manner which he thinks most for the advantage of the state. And, as the sovereign may refuse to foreigners the privilege of possessing immovable property, he is doubtless at liberty to forbear granting it except with certain conditions annexed.

§ 115. Marriages of aliens. (118)

There exists no natural impediment to prevent foreigners from contracting marriages in the state. But, if these marriages are found prejudicial or dangerous to a nation, she has a right, and is even in duty bound to prohibit them, or to subject to certain conditions the permission to contract them: and, as it belongs to the nation or to her sovereign to determine what appears most conducive to the welfare of the state, other nations ought to acquiesce in the regulations which any sovereign state has made on this head. Citizens are almost everywhere forbid to marry foreign wives of a different religion; and in many parts of Switzerland a citizen cannot marry a foreign woman, unless he prove that she brings him in marriage a certain sum fixed by the law.


(110) See more fully, Grotius, book 2. chap. 2, p. 153; 1 Chit. Com. L. 86, 87.

(111) (In the courts of the United States alien friends are entitled to clairn the same protection of their rights as citizens. Taylor v. Carpenter, 3 Story's Rep. 458.) See ante 166, in notes, as to foreign judgments. The doctrine here advanced by Vattel (excepting as regards land) is contrary to the present French Code, and many other authors. Upon principle, it should seem, that if a contract or right be created in one country, and be there by the lex loci subjected to certain qualifications, and clothed with certain privileges, it ought to be enforced if at all as against all the original parties, precisely the same in a foreign country as it would be in that where it was created; and this, although it be a negotiable security, and the interest therein vested in a third person resident in a foreign country, because the latter ought, when he takes it, to inquire into the circumstances and law which affected it in the place where it was made. And à fortiori it should seem that if a contract or transaction were in violation of the state regulations of a foreign nation where it was made, as in fraud of its revenue, and such state is in amity with another state, the courts of the latter ought not to give effect to it. In neither case ought the accidental removal of either of the parties into a foreign country, or his prosecuting his remedy there, alter the substance of the remedy; and, however inconvenient and difficult it may be to investigate and accurately ascertain the precise state of foreign law, still, if courts will entertain jurisdiction over such cases, they ought to administer the law so as to give effect to the transaction precisely the same as if it had been litigated in the country where created; for, otherwise, the original expectations, rights, and interests of the parties would not be given effect to; and it would be conceded that, more especially after a competent local court has already decided upon the transaction (without any apparent injustice,) such decision ought to be conclusive in all other courts and countries.

These principles are fully acknowledged and given effect to in the present French Code and in their administration of the law. (See Pardessus, Droit Commercial, vol. 1, p. 455, 4 id. 196. 205, 209 to 211 and 220 to 223, titles, "Des Conflits de Legislation relatif au Commerce;" "De l'application de lois estrangeres relatives à la fornie des actes;" "De l'interpretation des actes fails en pays estrangers;' "De l'execution des actes faits en pays estrangers.";) Thus, in their courts it has been considered, that, if a bill of exchange be made in a foreign country, defective according to the French law, but valid according to the foreign law, it must nevertheless be given effect to in the French courts, even against a French endorser, "par ce que les regles sur la validité intrinsèque des conventions, sont dérivées du droit natural, et sont de toutes les législations;"; and in the case of limitations, it is laid down that the law of prescriptions prevailing in the country where the contract was made, though different from that in France, must in their courts, be given effect to. (4 Pardessus, 223.) They admit the difficulty of ascertaining correctly the foreign law, but consider that difficulty as not constituting any sufficient grounds for relieving their courts from the necessity of giving full effect to the contract according to the law of the place where it was made. (4 Pardessus, 246.) When the foreign law differs from that where the suit is depending, undoubtedly the party relying on the foreign law must prove it. (Brown v. Lacy. 1 Dowl. & Ryl. Ni. Pri. Cas. 41, n. (a. As to the evidence, see post, note.)

In Great Britain the same theory is professed, and prevails to a limited extent; but the courts have so narrowly applied it, that, as regards the process for the recovery of the claim, and the time when it must be commenced, it is a doctrine rather in name than in practice, excepting in a few instances as regards foreign marriages, and a few other cases. Dalrymple v. Dalrymple, Hafgg. Rep. 54; Lacon v. Higgins, 1 Dowl. & Ryl. Ni. Pri. Rep. 38; Roach v. Garvan, 1 Ves. 159.) In theory it is laid down, that effect ought to be given to contracts, and especially to bills of exchange according to the law of the country where the contract was made, and in which it was to be performed, and not according to the law of the country into which either or all may remove; for, what is not an obligation in one place cannot, by the laws of another country, become such in another place. (The King of Spain v. Machado, 4 Russ. Rep. 239; Burrows v. Jemino, 2 Stra. 733; Sel. Cas. 144, S.C.; Potter v. Brown, 5 East, 130; Chitty on Bills, 8th edit. 191.)

And a foreign marriage, if celebrated according to the lex loci, will be valid, though in a form quite different to that prescribed by English law. — Lacon v. Higgins, 1 Dowl. & Ryl. Ni. Pri. Cas. 38; 3 Stark Rep. 176; where see the mode of proving the foreign law. As to which also see Hill v. Reardon, Jacob's Rep. 89, 90; and as to foreign marriages, in general, see 1 Roper on Husband and Wife, 333; Lantour v. Teesdale, 8 Taunt. 830; Smith v. Maxwell, Ry. & Mood. Ni. Pri. Cas. 80; 1 Carr. & Payne, 271, S.C.; and see Butler v. Freeman, Ambl. 303. And indeed, a marriage had in a foreign country will not be valid here unless it were so by the lex loci. (Butler v. Freeman, Ambl. 303.) And, where the defendant gave the plaintiff, in a foreign country, where both were resident, a bill of exchange drawn by the defendant upon a person in England, which bill was afterwards protested here for non-acceptance, and the defendant afterwards, while still abroad, became bankrupt there, and obtained a certificate of discharge by the law of that state, it was held that such certificate was a bar to an action here upon an implied assumpsit to pay the bill in consequence of such non-acceptance in England, because such implied contract must be considered as made abroad. (Potter v. Brown, 5 East. 124.) So, in England, the rule is recognised, that the payment of a bill is to be made according to the law of the place where it was made payable, as best corresponding with the original intention of the parties. (Beawes, pl. 251; Marius, 102; Poth. pl. 155; 5 Barn. & Cres. 443; Chitty on Bills, 191.) So, the English courts, in some cases, besides giving effect to the contract itself, according to the foreign law, also give effect to such foreign law in some collateral respects, acknowledging that otherwise the greatest injustice might ensue. Thus, in France, a protest for non-payment is not to be made till the day after a bill falls due, whereas in England it must be made upon the very day; and it cannot be doubted that if the bill were payable in France the English courts must give effect to the French instead of the English law, (4 Pardessus, 227, semble.) So, where a wife was entitled to a share under the statute of distribution, and was resident in Prussia, and by the laws of which one moiety of the effects of the husband must come to her on his death, the court of equity here did not, as usual, require him to make any settlement upon his wife. (Sawyer v. Shute, 1 Anst. 63; and Campbell v. French, 3 Ves. 323.)

But as before observed, the English courts will not, as respects the form of the remedy, notice the foreign law; and therefore a foreigner may in England be arrested for a debt, or in equity upon a writ of ne exeat, in respect of which he could not, according to the foreign law, where it was contracted, have been imprisoned. (De la Vega v. Vianna, 1 Barn. & Adolph. 284; 10 Barn, & Cress. 903; Flack v. Holm, 1 Jac. & Walk. 405.) So, though according to the law of Holland, persons jointly concerned in trade could not use as partners, they might do so in England. (Shaw v. Harvey, Mood. & M. 226.) And, as regards the time for commencing suits on foreign contracts, the English courts, contrary to the practice in France, will only apply the English Statute of Limitations, and will not regard the foreign lex loci. (The British Linen Company v. Drummond. 10 Barn. & Cress. 903; 1 Barn. & Adolph. 285, 384; 1 Younge & Jerv. 376; (Nash v. Tupper, I Caine's Rep. 402; Decouche v. Savetier, 3 Johns. Cha. Rep. 190; Le Roy v. Crowninshield, 2 Mason's Rep. 151;) aliter in France, 4 Pardessus, 223.) But it must be observed, that, in the case of The British Linen Company v. Drummond, (10 Barn. & Cress. 903), the much more distinct French law in 1 Pardessus, 455, 4 id. 196, 209 to 211, 220 to 223, and 285, was not cited, and that Lord Tenterden doubted whether the decision in Delvalle v. The York Buildings Company was not the better law.

Again, in the English courts there is a rule of narrow petty policy not to protect the revenue laws of a foreign state, even at amity with this country, but even to encourage and give effect to the most dishonourable practices, however injurious to such independent state; so that British subjects are allowed to carry on smuggling transactions adverse to the interests of a neighbouring country, provided they do not prejudice our own revenue. (Holman v. Johnson, Cowp. 343) — per Lord Mansfield, "no country ever takes notice of the revenue laws of another." (See all the cases collected and observed upon in Chitty on Bills, 8th edit. 143, n.c.) And this to such a degree that a British subject has been allowed in the English courts to support an action against a purchaser of paper knowingly made by the plaintiff for the purpose of forging assignâts upon the same, to be exported to France, in order to commit frauds there on other persons. (Smith v. Marconnoy, 2 Peake's Rep. 81, addenda; and Strongitharm v. Lukyn, 1 Esp. Rep. 389). Assuredly one state is bound to act towards another as neighbours should to each other; and should it be tolerated that the latter should encourage frauds of one upon the other? Express treaties sometimes expressly provide against the toleration of such practices. So, in some cases, the English courts will not only deny effect to a correct decision of a foreign court upon the lex loci applicable to the same transaction, but will actually adjudicate to the contrary. Thus, in a late case it was held in chancery, that a distinct holder might recover in an English court on a bill drawn in France on a French stamp, although, in consequence of it not being in the form required by the French Code, another holder had failed in an action which he brought upon it in a French court; and the vice-chancellor is reported to have been of opinion, "That the circumstance of the bills being drawn and accepted by the defendant in France, and of the plaintiff having received the same from the French drawer, and of the bills having been drawn in such a form in France that the holder could not recover on them in France, was no objection to his recovering on them in an English court." (Wynne v. Jackson, 2 Russ. 352; but see observations in Wynne v. Cullender, 1 Russ. 293.)

In cases where the foreign law and rule of construction would prevail, care must be observed to establish it, and have it stated on the record, for otherwise the contract will be construed the same as an English contract; and therefore it was held that an instrument executed by foreigners in a foreign country, as in Spain, must, on demurrer, be construed by the same grammatical rules as English contracts, and according to the obvious import of its terms, unless there be an allegation in the bill in equity, setting it forth, and that, according to the law of the country in which it was executed, the true construction of it is different. (The King of Spain and Others v. Machado and Others, 4 Russ. 224.)

Where an English commission precedes a Scotch sequestration, all Scotch personal estate is liable to the commission, and not to the sequestration, (Ex parte Cridland, 3 Ves. &; B. 100; when otherwise. Ex parte Geddes, 1 Glyn & J. 414.)

Legacy in a foreign country, and coin, as sicca rupees, by a will in India, if paid by remittance to this country, the payment must be according to the current value of the rupee in India, without regard to the exchange or the expense of remittance; so, as to other countries. (Cockerell v. Barber, 16 Ves. 461.)

With respect to the proof of foreign law, it must in general be established as a fact, and the court cannot take notice of the same judicially. (Freemoult v. Dedire, 1 P. Wms. 431; Ex parte Cridland, 3 Ves. & B. 99; {Talbot v. Seeman, 1 Cranch. 1.} It is not absolutely necessary to prove it by the production of an examined copy; but a printed copy of the Cinq Codes of France, produced by the French vice-consul resident in London, purchased by him at a bookseller's shop at Paris, was received as evidence of the law of France, upon which the Court in England would act in deciding upon the validity of a marriage in France between British subjects. (Lacon v. Higgins, 1 Dowl. & Ryl. Ni. Pri. Rep. 38; 3 Stark. 176, S.C.) And it has been supposed that the same point was decided in Sir Thomas Picton's case, where the question arose as to the right of inflicting torture in the island of Trinidad; formerly under the dominion of Spain; and the attorney-general of the island was examined as a witness, and the court allowed him to refer to printed books purporting to contain the law of Spain; and Lord Ellenborough, C.J., expressed no doubt that such books were receivable as evidence of the law of Spain and Trinidad. (30 Howell's State Trials, 514; but see 1 Dowl. & Ryl. Ni. Pri. Rep. 42, n. (a).)

In equity, it has been held that the foreign law must be verified by the affidavit of a professional person swearing positively, and not by the affidavit of another person not professionally acquainted with the law, and swearing only to information and belief. (Hill v. Reardon, Jacob, 89) The best evidence is an affidavit or evidence of the foreign consul, or a foreign advocate of experience, stating verbatim the terms of the foreign law, when it was a written edict, or in the nature of our statute law. (Flack v. Holm, 1 Jac. & Walk. 418.)

As respects the claims of a sovereign of a foreign independent state upon a subject of Great Britain, it seems clear that he stands in the same situation as a private subject of such foreign state. (Greig v. Somerville, 1 Russ. & M. 388, case of the emperor of Russia's claim.) Lord Hawkesbury said, that a foreign power might legally apply to the courts of judicature, and might obtain redress, as for defamation or calumny (6 Russ. Mod. Europe, 20, ante, 143), excepting that, in respect of his dignity, he, like our king, is not to recover costs (ante, 154, Hullet v. King of Spain, 1 Dow. Rep. new ser. 177); and, if such sovereign has never been in England, the statute of limitations constitutes no bar; and in equity at any distance of time, however remote, whilst there is a fund in court, it will be decreed that the foreign sovereign shall be at liberty, by his ambassador, to go before the master and prove such debt due from an intestate's estate as he might be able, though not so as to prejudice any previous distribution (id, ibid. cases first stated).

It has been recently decided, that a foreign sovereign has a right to sue in the English courts in equity as well as at law. (Hullett and Others v. King of Spain, 1 Dow. Rep. new ser. 169, and 2 Bligh. new ser. 31, in the House of Lords, on appeal from Court of Chancery.) {the Constitution of the United States gives jurisdiction to the courts of the United States where foreign states are parties. The King of Spain v. Oliver, 2 Wash. C.C. Rep. 429.}

If a foreign state sue in chancery, the bill must properly describe the plaintiff, so that he may, if thought fit, be served upon a cross bill. (The Columbian Government v. Rothschild, 1 Simons, 94, id. 68.) And the sovereign of a foreign state must either sue here in his own name or by his ambassador; and his subjects, when privately interested, must sue individually in their names, or in their defined political character; and an ambassador cannot sue in England as procurator general for all or any of the subjects of the foreign sovereign. (Spanish Ambassador v. Bingley, Hob. 113.)

By the maritime law materially affecting the intercourse of nations with each other, when damage has been occasioned to a ship by the equal fault of those managing one ship as the other, as, by running foul of each other, the owner of the damaged vessel is to receive half the amount of the damage sustained, (Hay v. Le New, 2 Shaw's Rep. 401 to 405.)

1. The Taurians.

2. See Grotius de Jure Belli et Pacis, lib. ii. cap. xx, § xl. n. 7.

(112) But, in ancient times, the Chancellor had jurisdiction, by writ of ne exeat, to restrain a foreigner or a British subject from going abroad and communicating intelligence to an enemy, or otherwise injurious to this state, and the Court of Chancery, from more to more, have assumed and established a jurisdiction over foreigners in favour of a private subject; so that, if a foreigner be here, and be about to depart, he may be restrained and compelled to give security for satisfying any equitable claim, or even a demand at law in nature of an account, either upon a contract or transaction entered into in the foreign country, and although by the lex loci the foreigner could not have been arrested, (Flack v. Holm, 1 Jac. & W. 405; but see De Carriere v. Columne. 4 Ves. 577); and it is now settled, that at law, a foreigner may be arrested in this country for a foreign debt, though he could not have been imprisoned in his own country. (De la Vega v. Vianna, 1 Barn. & Adolph, 284.)

(113) But see ante, 105, and note.

3. In his Republic, book i. chap. vi.

(114) But specific performance of an agreement relating to the boundaries of two provinces in America, may be enforced by bill in chancery in England, if the parties be within the jurisdiction Penn v. Baltimore, 1 Ves. sen, 444.)

(115) Ante, 167, and note; and see Vattel cited, Anstruther v. Chalmer, 2 Sim. Rep. 4; but see Trotter v. Trotter, 3 Wils. & Shaw. 407, 414, and ante 167, in notes, and see Anon. 9 Mod. 66; Bowaman v. Reeve. Pre. Ch. 577, ante. 178, note.

(116) As to alienage in general, and the jealous provisions in England against foreigners, see 1 Chittys Commercial Law, 108 to 169. See exceptions in treaty with America, and decisions thereon with respect to Americans who were seised of lands in Great Britain, being allowed to retain the same, notwithstanding a subsequent war — Sutton v. Sutton, 1 Russ. & Myl. Rep. 663.

4. De Jure Belli et Pacis, lib. ii. cap. vi. § 14.

5. Digest, lib. xlix. til, x7. De Captivis, et postlimin.

6. His Republic, book 1, chap. vi.

(117) By the municipal law of Great Britain, no alien can inherit or hold real property. Thus, Doe v. Acklam, 2 Bar. & Cress. 799, establishes that a person born in the United states, since 1783, when the two countries were separated, cannot inherit lands in England; and the same point was afterwards decided in Doe d. Auchmuty v. Mulcaster, 5 Barn. & Cres. 771. To this rule some exemptions have been occasionally introduced by express treaty intended to be permanent, as regards such exception, and strengthened by statute; as under the treaty of 1794, between Great Britain and America, and the act 37 Geo. III. c. 97, under which American citizens who held lands in Great Britain, on 28 Oct. 1795, and their heirs and assigns, are at all times to be considered, so far as regards those lands, not as aliens, but as native subjects of Great Britain, and this, notwithstanding a subsequent war and the adherence of the citizen to America whilst at war with Great Britain, Sutton v. Sutton, 1 Russ. & M. 663), and the consequent conflictlon of duties as regards the American citizen seised of such estate. But, as alienage subjects no party to any indictment or penalty, an alien must answer a bill of discovery filed to ascertain whether he has purchased land. (Duplesses v. Attorney-General, 1 Bro. P.C. 415; 2 Ves. 286.)

(118) The validity of a marriage celebrated in a foreign country must be determined in an English court by the lex loci where the marriage was solemnized; and, therefore, on a plea of coverture, where the parties, who were British subjects, were married in France, it was held, that, if the marriage would not be valid in that country, according to the municipal law there, it would not be valid in this country. It was even further held that a printed copy of the "Cinq Codes"; of France, produced by the French vice-consul resident in London, purchased by him at a bookseller's shop in Paris, was property received as evidence of the law of France upon which the court would act; and Abbott, C.J., said: The general rule certainly is, that the written law of a foreign country must be proved by an examined copy thereof before it can be acted upon in an English court; but, according to my recollection, printed books upon the subject of the law of Spain were referred to and acted upon in argument in Sir Thomas Picton's case as evidence of the law of that country, and, therefore, I shall act upon that authority, and receive the printed copy now produced as evidence of the law of France. (Lacon v. Higgins, 1 Dowling & Ryland, Ni. Pri. Cases, 36; 3 Stark. Rep. 176, S.C.; Butler v. Freeman, Ambl. 303.)


The LAW OF NATIONS - BOOK II.

CHAP. IX.

OF THE RIGHTS RETAINED BY ALL NATIONS AFTER THE INTRODUCTION OF DOMAIN AND PROPERTY.

§ 116. What are the rights of which men cannot be deprived.

IF an obligation, as we have before observed, gives a right to those things without which it cannot be fulfilled, every absolute, necessary, and indispensable obligation produces in this manner rights equally absolute, necessary, and indefeasible. Nature imposes no obligations on men without giving them the means of fulfilling them. They have an absolute right to the necessary use of those means: nothing can deprive them of that right, as nothing can dispense with their fulfilling their natural obligations.

§ 117. Right still remaining from the primitive state of communion.

In the primitive state of communion, men had, without distinction, a right to the use of every thing, as far as was necessary to the discharge of their natural obligations. And, as nothing could deprive them of this right, the introduction of domain and property could not take place without leaving to every man the necessary use of things, — that is to say, the use absolutely required for the fulfillment of natural obligations. We cannot, then, suppose the introduction to have taken place without this tacit restriction, that every man should still preserve some right to the things subjected to property, in those cases where, without this right, he would remain absolutely deprived of the necessary use of things of this nature. This right is a necessary remnant of the primitive state of communion.

§ 118. Right retained by each nation over the

Notwithstanding the domain of nations, therefore, each nation still retains some right to what is possessed by others, in those cases where she would find herself deprived of the necessary use of certain things if she were to be absolutely debarred from using them by the consideration of their being other people's property. We ought carefully to weigh every circumstance in order to make a just application of this principle.

§ 119. Right of necessity.

I say the same of the right of necessity. We thus call the right which necessity alone gives to the performance of certain actions that are otherwise unlawful, when, without these actions, it is impossible to fulfil an indispensable obligation. But it is carefully to be noted, that, in such a case, the obligation must really be an indispensable one, and the act in question the only means of fulfilling that obligation. If either of these conditions be wanting, the right of necessity does not exist on the occasion. We may see the subjects discussed in treatises on the law of nature, and particularly in that of Mr. Wolf. I confine myself here to a brief summary of those principles whose aid is necessary to us in developing the rights of nations.

§ 120. Right of procuring provisions by force. (119)

The earth was designed to feed its inhabitants; and he who is in want of every thing is not obliged to starve because all property is vested in others. When, therefore, a nation is in absolute want of provisions, she may compel her neighbours who have more than they want for themselves to supply her with a share of them, at a fair price; she may even take it by force, it they will not sell it. Extreme necessity revives the primitive communion, the abolition of which ought to deprive no person of the necessaries of life (§ 117). The same right belongs to individuals, when a foreign nation refuses them a just assistance. Captain Bontekoe, a Dutchman, having lost his vessel at sea, escaped in his boat, with a part of his crew, and landed on an Indian coast, where the barbarous inhabitants refusing him provisions, the Dutch obtained them sword in hand.1

§ 121. Right of making use of the things that belong to others. (119)

In the same manner, if a nation has a pressing want of the ships, wagons, horses, or even the personal labour of foreigners, she may make use of them, either by free consent or by force, provided that the proprietors be not under the same necessity. But, as she has no more right to these things than necessity gives her, she ought to pay for the use she makes of them, if she has the means of paying. The practice of Europe is conformable to this maxim. In cases of necessity, a nation sometimes presses foreign vessels which happen to be in her ports; but she pays a compensation for the services performed by them.

§ 122. Right of carrying off women.

Let us say a few words on a more singular case, since authors have treated of it — a case in which at present, people are never reduced to employ force. A nation cannot preserve and perpetuate itself, except by propagation. A nation of men has, therefore, a right to procure women, who are absolutely necessary to its preservation; and if its neighbours, who have a redundancy of females, refuse to give some of them in marriage to those men, the latter may justly have recourse to force. We have a famous example of this in the rape of the Sabine women.2 But, though a nation is allowed to procure for itself, even by force of arms, the liberty of obtaining women in marriage, no woman in particular can be constrained in her choice, nor become, by right, the wife of a man who carries her off by force — a circumstance which has not been attended to by those who have decided, without restriction, that the Romans did not commit an act of injustice on that occasion.3 It is true that the Sabine women submitted to their fate with a good grace; and, when their nation took up arms to avenge them, it sufficiently appeared, from the ardour with which those women rushed between the combatants, that they willingly acknowledged the Romans for their lawful husbands.

We may further add, that, if the Romans, as many pretend, were originally only a band of robbers united under Romulus, they did not form a true nation, or a legitimate state; the neighbouring nations had a just right to refuse them women; and the law of nature, which approves no civil society but such as is legitimate, did not require them to furnish that society of vagabonds and robbers with the means of perpetuating itself; much less did it authorize the latter to procure those means by force. In the same manner, no nation was obliged to furnish the Amazons with males. That nation of women, if it ever existed, put itself, by its own fault, out of a condition to support itself without foreign assistance.

§ 123. Right of passage. (120)

The right of passage is also a remnant of the primitive state of communion, in which the entire earth was common to all mankind, and the passage was everywhere free to each individual according to his necessities. Nobody can be entirely deprived of this right (§ 117); but the exercise of it is limited by the introduction of domain and property: since they have been introduced, we cannot exert that right without paying due regard to the private rights of others. The effect of property is, to give the proprietor's advantage a preference over that of all others. When, therefore, the owner of a territory thinks proper to refuse you admission into it, you must, in order to enter it in spite of him, have some reason more cogent than all his reasons to the contrary. Such is the right of necessity: this authorizes an act on your part, which on other occasions would be unlawful, viz. an infringement of the right of domain. When a real necessity obliges you to enter into the territory of others, — for instance, if you cannot otherwise escape from imminent danger, or if you have no other passage for procuring the means of subsistence, or those of satisfying some other indispensable obligation, — you may force a passage when it is unjustly refused, but, if an equal necessity obliges the proprietor to refuse you entrance, he refuses it justly; and his right is paramount to yours. Thus, a vessel driven by stress of weather has a right to enter, even by force, into a foreign port. But, if that vessel is affected with the plague, the owner of the port may fire upon it and beat it off, without any violation either of justice, or even of charity, which, in such a case, ought doubtless to begin at home.

§ 124. and of procuring necessaries.

The right of passage through a country would in most cases be useless, without that of procuring necessaries at a fair price: and we have already shown (§ 120) that in case of necessity it is lawful to take provisions even by force.

§ 125. Right of dwelling in a foreign country.

In speaking of exile and banishment, we have observed (Book I. §§ 229-231) that every man has a right to dwell somewhere upon earth. What we have shown with respect to individuals may be applied to whole nations. If a people are driven from the place of their abode, they have a right to seek a retreat: the nation to which they make application ought then to grant them a place of habitation, at least for a time, if she has not very important reasons for a refusal. But, if the country inhabited by this nation is scarcely sufficient for herself, she is under no obligation to allow a band of foreigners to settle in it for ever: she may even dismiss them at once, if it be not convenient to her to grant them a permanent settlement. As they have the resource of seeking an establishment elsewhere, they cannot claim any authority from the right of necessity, to stay in spite of the owners of the country. But it is necessary, in short, that these fugitives should find a retreat; and, if everybody rejects them, they will be justifiable in making a settlement in the first country where they find land enough for themselves, without depriving the inhabitants of what is sufficient for them. But, even in this case, their necessity gives them only the right of habitation; and they are bound to submit to all the conditions, not absolutely intolerable, which may be imposed on them by the master of the country, — such as paying him tribute, becoming his subjects, or at least living under his protection, and, in certain respects, depending on him. This right, as well as the two preceding, is a remnant of the primitive state of communion.

§ 126. Things of

We have been occasionally obliged to anticipate the subject of the present chapter, in order to follow the order of the different subjects that presented themselves. Thus, in speaking of the open sea, we have remarked (Book I. § 281) that those things, the use of which is inexhaustible, cannot fall under the domain or property of any one; because, in that free and independent state in which nature has produced them, they may be equally useful to all men. And, as to those things even which in other respects are subject to domain, if their use is inexhaustible, they remain common with respect to that use, thus a river may be subject both to domain and empire; but, in quality of running water, it remains common, — that is to say, the owner of the river cannot hinder any one from drinking and drawing water out of it. Thus, the sea, even in those parts that are held in possession, being sufficient for the navigation of all mankind, he who has the domain cannot refuse a passage through it to any vessel from which he has nothing to fear. But it may happen, by accident, that this inexhaustible use of the thing may be justly refused by the owner, when people cannot take advantage of it without incommoding him or doing him a prejudice. For instance, if you cannot come to my river for water without passing over my land and damaging the crop it bears, I may for that reason debar you from the inexhaustible use of the running water: in which case, it is but through accident you are deprived of it. This leads us to speak of another right which has a great connection with that just mentioned, and is even derived from it; that is, the right of innocent use.

§ 127. Right of innocent use.

We call innocent use, or, innocent advantage, that which may be derived from a thing without causing either loss or inconvenience to the proprietor; and the right of innocent use is the right we have to that advantage or use which may be made of things belonging to another, without causing him either loss or inconvenience. I have said that this right is derived from the right to things of which the use is inexhaustible. In fact, a thing that may be useful to any one without loss or inconvenience to the owner, is, in this respect, inexhaustible in the use; and that is the reason why the law of nature still allows all men a right to it notwithstanding the introduction of domain and property. Nature, who designs her gifts for the common advantage of mankind, does not allow us to prevent the application of those gifts to a useful purpose which they may be made to serve without any prejudice to the proprietor, and without any diminution of the utility and advantages he is capable of deriving from his rights.

§ 128. Nature of this right in general.

This right of innocent use is not a perfect right, like that of necessity: for, it belongs to the owner to judge whether the use we wish to make of a thing that belongs to him will not be attended with damage or inconvenience. If others should presume to decide on the occasion, and, in case of refusal, to compel the proprietor, he would be no longer master of his own property. It may frequently happen that the person who wishes to derive advantage from a thing shall deem the use of it perfectly innocent, though it is not so in fact; and, if, in such case, he attempts to force the proprietor, he exposes himself to the risk of committing an act of injustice; nay, he actually commits one, since he infringes the owner's right to judge of what is proper to be done on the occasion. In all cases, therefore, which admit of any doubt, we have only an imperfect right to the innocent use of things that belong to others.

§ 129. and in cases not doubtful.

But, when the innocence of the use is evident, and absolutely indubitable, the refusal is an injury. For, in addition to a manifest violation of the rights of the party by whom that innocent use is required, such refusal is moreover a testimony of an injurious disposition of hatred or contempt for him. To refuse a merchant-ship the liberty of passing through a strait, to fishermen that of drying their nets on the sea shore, or of watering at a river, is an evident infringement of the right they have to the innocent use of things in those cases, But in every case, if we are not pressed by necessity, we may ask the owner for his reasons for the refusal, and if he gives none, we may consider him as an unjust man; or an enemy, with whom we are to act according to the rules of prudence. In general, we should regulate our sentiments and conduct towards him, according to the greater or lesser weight of the reasons on which he acts.

§ 130. Exercise of this right between nations.

All nations do therefore still retain a general right to the innocent use of things that are under the domain of any one individual nation. But, in the particular application of this right, it is the nation in whom the property is vested that is to determine whether the use which others wish to make of what belongs to her be really innocent: and, if she gives them a denial, she ought to allege her reasons; as she must not deprive others of their right from mere caprice. All this is founded in justice: for, it must be remembered that the innocent use of things is not comprehended in the domain, or the exclusive property. The domain gives only the right of judging, in particular cases, whether the use be really innocent. Now, he who judges ought to have his reasons; and he should mention them, if he would have us think that he forms any judgment, and not that he acts from caprice or ill-nature. All this, I say, is founded injustice. In the next chapter, we shall see the line of conduct which a nation is, by her duty to other nations, bound to observe in the exercise of her rights.


(119) See the doctrine of Preemption, 1 Chitty's Com. Law, 103, 104, 105, 446, 447.

1. Bonketoe's Voyage, in the Voyages of the Dutch to the East Indies.

2. Livy, book i.

3. Wolf., Jus Gent. § 341.

(120) See fully 1 Chitty's Com. L., 84; Grotius, book ii, chap. ii. p. 153, states that a nation is hound to grant free passage without reserve or discretion. But Puffendorf appears to agree with Vattel, and states that the law of humanity does not seem to oblige us to grant passage to any other goods except such as are absolutely necessary for the purpose of their life to whom they are thus conveyed. — Puff. book iii. chap. iii, § 6, p. 29


The LAW OF NATIONS - BOOK II.

CHAP. X.

HOW A NATION IS TO USE HER RIGHT OF DOMAIN, IN ORDER TO DISCHARGE HER DUTIES TOWARDS OTHER NATIONS, WITH RESPECT TO THE INNOCENT USE OF THINGS.

§ 131. General duty of the proprietor.

SINCE the law of nations treats as well of the duties of states as of their rights, it is not sufficient that we have explained, on the subject of innocent use, what all nations have a right to require from the proprietor: we are now to consider what influence his duties to others ought to have on their proprietor's conduct. As it belongs to him to judge whether the use be really innocent, and not productive of any detriment or inconvenience to himself, he ought not to give a refusal unless it be grounded upon real and substantial reasons: this is a maxim of equity; he ought not even to stop at trifles, — a slight loss, or any little inconvenience: humanity forbids this; and the mutual love which men owe to each other, requires greater sacrifices. It would certainly be too great a deviation from that universal benevolence which ought to unite the human race, to refuse a considerable advantage to an individual, or to a whole nation, whenever the grant of it might happen to be productive of the most trifling loss or the slightest inconvenience to ourselves. In this respect, therefore, a nation ought on all occasions to regulate her conduct by reasons proportioned to the advantages and necessities of others, and to reckon as nothing a small expense or a supportable inconvenience, when great good will thence result to another nation. But she is under no obligation to incur heavy expenses or embarrassments, for the sake of furnishing others with the use of any thing, when such use is neither necessary nor of any great utility to them. The sacrifice we here require is not contrary to the interests of the nation: — it is natural to think that the others will behave in the same manner in return; and how great the advantages that will result to all states from such a line of conduct!

§ 132. Innocent passage. (121)

The introduction of property cannot be supposed to have deprived nations of the general right of traversing the earth for the purposes of mutual intercourse, of carrying on commerce with each other, and for other just reasons. It is only on particular occasions, when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. And he cannot lawfully annex burdensome conditions to a permission which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property. The count of Lupfen having improperly stopped some merchandise in Alsace, and complaints being made on the subject to the emperor Sigismund, who was then at the council of Constance, that prince assembled the electors, princes, and deputies of towns, to examine the affair. The opinion of the burgrave of Nuremberg deserves to be mentioned: "God," said he, "has created heaven for himself and his saints, and has given the earth to mankind, intending it for the advantage of the poor as well as of the rich. The roads are for their use, and God has not subjected them to any taxes." He condemned the count of Lupfen to restore the merchandise, and to pay costs and damages, because he could not justify his seizure by any peculiar right. The emperor approved this opinion, and passed sentence accordingly.1

§ 133. Sureties may be required.

But, if any apprehension of danger arise from the grant of liberty to pass through a country, the state has a right to require sureties: the party who wishes to pass cannot refuse them, a passage being only so far due to him as it is attended with no inconvenience.

§ 134. Passage of merchandise. (122)

In like manner, a passage ought also to be granted for merchandise: and, as this is in general productive of no inconvenience, to refuse it without just reason is injuring a nation, and endeavouring to deprive her of the means of carrying on a trade with other states. If this passage occasions any inconvenience, any expense for the preservation of canals and highways, we may exact a compensation for it by toll duties (Book I. § 303).

§ 135. Residence in the country.

In explaining the effects of domain we have said above (§§ 64 and 100) that the owner of the territory may forbid the entrance into it, or permit it on such conditions as he thinks proper. We were then treating of his external right, — that right which foreigners are bound to respect. But now that we are considering the matter in another view, and as it relates to his duties and to his internal right, we may venture to assert that he cannot, without particular and important reasons, refuse permission, either to pass through or reside in the country, to foreigners who desire it for lawful purposes. For, their passage or their residence being in this case an innocent advantage, the law of nature does not give him a right to refuse it: and, though other nations and other men in general are obliged to submit to his judgment (§§ 128 and 130), he does not the less offend against his duty, if he refuses without sufficient reason: he then acts without any true right; he only abuses his external right. He cannot, therefore without some particular and cogent reason. refuse the liberty of residence to a foreigner who comes into the country with the hope of recovering his health, or for the sake of acquiring instruction in the schools and academies. A difference in religion is not a sufficient reason to exclude him, provided he do not engage in controversial disputes with a view to disseminate his tenets; for, that difference does not deprive him of the rights of humanity.

§ 136. How we are to act towards foreigners who desire a perpetual residence.

We have seen (§ 125) how the right of necessity may in certain cases authorize a people, who are driven from the place of their residence, to settle in the territory of another nation. Every state ought, doubtless, to grant to so unfortunate a people every aid and assistance which she can bestow without being wanting to herself: but to grant them an establishment in the territories of the nation, is a very delicate step, the consequences of which should be maturely considered by the conductor of the state. The emperors Probus and Valens experienced the evil effects of their conduct in having admitted into the territories of the empire numerous bands of Gepidæ, Vandals, Goths, and other barbarians.2 If the sovereign finds that such a step would be attended with too great an inconvenience or danger, he has a right to refuse an establishment to those fugitive people, or to adopt, on their admission, every precaution that prudence can dictate to him. One of the safest will be, not to permit those foreigners to reside together in the same part of the country, there to keep up the form of a separate nation. Men who have not been able to defend their own country, cannot pretend to any right to establish themselves in the territory of another, in order to maintain themselves there as a nation in a body.3 The sovereign who harbours them may therefore disperse them, and distribute them into the towns and provinces that are in want of inhabitants. In this manner his charity will turn to his own advantage, to the increase of his power, and to the greater benefit of the state. What a difference is observable in Brandenburg since the settlement of the French refugees! The great elector, Frederic William, offered an asylum to those unfortunate people; he provided for their expenses on the road, and with truly regal munificence established them in his states; by which conduct that beneficent and generous prince merited the title of a wise and able politician.

§ 137. Right accruing

When, by the laws or the custom of a state, certain actions are generally permitted to foreigners, as, for instance, travelling freely through the country without any express permission, marrying there, buying or selling merchandise, hunting, fishing, &c., we cannot exclude any one nation from the benefit of the general permission without doing her an injury, unless there be some particular and lawful reason for refusing to that nation what is granted indiscriminately to others. The question here, it is to be observed, only relates to those actions which are productive of innocent advantage: and, as the nation allows them to foreigners without distinction, she, by the very nature of that general permission, affords sufficient proof that she deems them innocent with respect to herself; which amounts to a declaration that foreigners have a right to them (§ 127): the innocence of such acts is manifested by the confession of the state; and the refusal of an advantage that is manifestly innocent, is an injury (§ 129). Besides, to attempt without any reason to lay one nation under a prohibition where an indiscriminate permission is enjoyed by all others, is an injurious distinction, since it can only proceed from hatred or contempt. If there by any particular and well-founded reason for the exception, the advantage resulting from the act in question can no longer be deemed an innocent one with respect to the excepted nation; consequently no injury is done to them. The state may also by way of punishment, except from the general permission a people who have given her just cause of complaint.

§ 138. A right granted as a favour.

As to rights of this nature granted to one or more nations for particular reasons, they are conferred on them as favours, either by treaty, or through gratitude for some particular service: those to whom the same rights are refused cannot consider themselves as offended. The nation does not esteem the advantage accruing from those acts to be an innocent one, since she does not indiscriminately allow them to all nations: and she may confer on whom she pleases any rights over her own property, without affording just grounds to anybody else, either for uttering a complaint, or forming pretensions to the same favour.

§ 139. The nation ought to be courteous.

Humanity is not confined to the bare grant of a permission to foreign nations to make an innocent use of what belongs to us: it moreover requires that we should even facilitate to them the means of deriving advantage from it, so far as we can do this without injury to ourselves. Thus, it becomes a well-regulated state to promote the general establishment of inns where travellers may procure lodging and food at a fair price, — to watch over their safety, — and to see that they be treated with equity and humanity. A polite nation should give the kindest reception to foreigners, receive them with politeness, and on every occasion show a disposition to oblige them. by these means every citizen, while he discharges his duty to mankind in general, will at the same time render essential services to his country. Glory is the certain reward of virtue; and the good-will which is gained by an amiable character, is often productive of consequences highly important to the state. No nation is entitled to greater praise in this respect than the French: foreigners nowhere meet a reception more agreeable, or better calculated to prevent their regretting the immense sums they annually spend at Paris.


(121) See, in general, 1 Chitty's Com. Law, 84, 88.

1. Stettler, vol. i. p. 114. Tschudi, vol ii. pp. 27, 28.

(122) Puffendorf, b. 3, ch. 3, s. 6. p. 29.

2. Vopiscus, Prob. c. sviii. — Ammian. Marcell. lib. xxxi. — Socrat. Hist. Eccles. lib. iv. c. 28.

3. Cæsar replied to the Tenchtheri and Usipetes, who wanted to retain possession of the territories they had seized, that it was not just for them to invade the territories of others, since they had not been able to defend their own. — Neque verum esse, qui suos fines tueri non potuerint, alienos occupare. De Bello Gallico, lib. iv, cap. vi.


The LAW OF NATIONS - BOOK II.

CHAP. XI.

OF USUCAPTION AND PRESCRIPTION AMONG NATIONS.

LET us conclude what relates to domain and property with an examination of a celebrated question on which the learned are much divided. It is asked whether usucaptlon and prescription can take place between independent nations and states.(123)

§ 140. Definition of usucaption and prescription.

Usucaption is the acquisition of domain founded on a long possession, uninterrupted and undisputed — that is to say, an acquisition solely proved by this possession. Wolf defines it, an acquisition of domain founded on a presumed desertion. His definition explains the manner in which a long and peaceable possession may serve to establish the acquisition of domain. Modestinus, Digest, lib, 3, de Usurp. et Usucap., says, in conformity to the principles of the Roman law, that usucaption is the acquisition of domain by possession continued during a certain period prescribed by law. These three definitions are by no means incompatible with each other; and it is easy to reconcile them by setting aside what relates to the civil law in the last of the three. In the first of them, we have endeavoured clearly to express the idea commonly affixed to the term usucaption.

Prescription is the exclusion of all pretensions to a right — an exclusion founded on the length of time during which that right has been neglected: or, according to Wolf's definition, it is the loss of an inherent right by virtue of a presumed consent. This definition, too, is just; that is, it explains how a right may be forfeited by long neglect; and it agrees with the nominal definition we give of the term, prescription, in which we confine ourselves to the meaning usually annexed to the word. As to the rest, the term usucaption is but little used in French; and the word prescription implies, in that language, every thing expressed by the Latin terms Usucapio and præscriptio: wherefore we shall make use of the word prescription wherever we have not particular reasons for employing the other.

§ 141. Usucaption and prescription derived from the law of nature.

Now, to decide the question we have proposed, we must first see whether usucaption and prescription are derived from the law of nature. Many illustrious authors have asserted and proved them to be so.1 Though in this treatise we frequently suppose the reader acquainted with the law of nature, it is proper in this place to establish the decision, since the affair is disputed.

Nature has not herself established a private property over any of her gifts, and particularly over land; she only approves its establishment, for the advantage of the human race. On this ground, then, it would be absurd to suppose, that, after the introduction of domain and property, the law of nature can secure to a proprietor any right capable of introducing disorder into human society. Such would be the right of entirely neglecting a thing that belongs to him, — of leaving it during a long space of time under all the appearances of a thing utterly abandoned or not belonging to him, — and of coming at length to wrest it from a bona fide possessor, who has perhaps dearly purchased his title to it, — who has received it as an inheritance from his progenitors, or as a portion with his wife, — and who might have made other acquisitions, had he been able to discover that the one in question was neither solid nor lawful. Far from giving such a right, the law of nature lays an injunction on the proprietor to take care of his property, and imposes on him an obligation to make known his rights, that others may not be led into error: it is on these conditions alone that she approves of the property vested in him, and secures him in the possession. If he has neglected it for such a length of time that he cannot now be admitted to reclaim it without endangering the rights of others, the law of nature will no longer allow him to revive and assert his claims. We must not therefore conceive the right of private property to be a right of so extensive and imprescriptible a nature, that the proprietor may, at the risk of every inconvenience thence resulting to human society, absolutely neglect it for a length of time, and afterwards reclaim it, according to his caprice. With what other view than that of the peace, the safety, and the advantage of human society, does the law of nature ordain that all men should respect the right of private property in him who makes use of it? For the same reason, therefore, the same law requires that every proprietor who for a long time and without any just reason neglects his right, should be presumed to have entirely renounced and abandoned it. This is what forms the absolute presumption (juris et de jure) of its abandonment, — a presumption, upon which another person is legally entitled to appropriate to himself the thing so abandoned. The absolute presumption does not here signify a conjecture of the secret intentions of the proprietor, but a maxim which the law of nature ordains should be considered as true and invariable, — and this with a view of maintaining peace and order among men. Such presumption therefore confirms a title as firm and just as that of property itself, and established and supported by the same reasons. The bona fide possessor, resting his title on a presumption of this kind, has, then, a right which is approved by the law of nature; and that law, which requires that the rights of each individual should be stable and certain, does not allow any man to disturb him in his possession,

The right of usucaption properly signifies that the bona fide possessor is not obliged to suffer his right of property to be disputed after a long-continued and peaceable possession on his part: he proves that right by the very circumstance of possession, and sets up the plea of prescription in bar to the claims of the pretended proprietor. Nothing can be more equitable than this rule. If the claimant were permitted to prove his property, he might happen to bring proofs very convincing indeed in appearance, but, in fact, deriving all their force only from the loss or destruction of some document or deed which would have proved how he had either lost or transferred his right. Would it be reasonable that he should be allowed to call in question the rights of the possessor, when by his own fault he has suffered matters to proceed to such a state that there would be danger of mistaking the truth? If it be necessary that one of the two should be exposed to lose his property, it is just it should be the party who is in fault.

It is true, that, if the bona fide possessor should discover, with perfect certainty, that the claimant is the real proprietor, and has never abandoned his right, he is bound in conscience, and by the internal principles of justice, to make restitution of whatever accession of wealth he has derived from the property of the claimant. But this estimation is not easily made; and it depends on circumstances.

§ 142. What foundation is required for ordinary prescription.

As prescription cannot be grounded on any but an absolute or lawful presumption, it has no foundation, if the proprietor has not really neglected his right. This condition implies three particulars: 1, that the proprietor cannot allege an invincible ignorance, either on his own part, or on that of the persons from whom he derives his right; — 2, that he cannot justify his silence by lawful and substantial reasons; — 3, that he has neglected his right, or kept silence during a considerable number of years: for, the negligence of a few years, being incapable of producing confusion and rendering doubtful the respective rights of the parties, is not sufficient to found or authorize a presumption of relinquishment. It is impossible to determine by the law of nature the number of years required to found a prescription: this depends on the nature of the property disputed, and the circumstances of the case.

§ 143. Immemorial prescription.

What we have remarked in the preceding section, relates to ordinary prescription. There is another called immemorial, because it is founded on immemorial possession, — that is, on a possession, the origin of which is unknown, or so deeply involved in obscurity, as to allow no possibility of proving whether the possessor has really derived his right from the original proprietor, or received the possession from another. This immemorial prescription secures the possessor's right beyond the power of recovery: for, it affords a legal presumption that he is the proprietor, as long as the adverse party fails to adduce substantial reasons in support of his claim: and, indeed, whence could these reasons be derived, since the origin of the possession is lost in the obscurity of time? It ought even to secure the possessor against every pretension contrary to his right. What would be the case were it permitted to call in question a right acknowledged time immemorial, when the means of proving it were destroyed by time? Immemorial possession, therefore, is an irrefragable title, and immemorial prescription admits of no exception: both are founded on a presumption which the law of nature directs us to receive as an incontestable truth.

§ 144. Claimant alleging reasons for his silence.

In cases of ordinary prescription, the same argument cannot be used against a claimant who alleges just reasons for his silence, as, the impossibility of speaking, or a well-founded fear, &c., because there is then no longer any room for a presumption that he has abandoned his right. It is not his fault if people have thought themselves authorized to form such a presumption; nor ought he to suffer in consequence: he cannot therefore be debarred the liberty of clearly proving his property. This method of defence in bar of prescription has been often employed against princes whose formidable power had long silenced the feeble victims of their usurpations.

§ 145. Proprietor sufficiently showing that he does not mean to abandon his right.

It is also very evident that we cannot plead prescription in opposition to a proprietor who, being for the present unable to prosecute his right, confines himself to a notification, by any token whatever, sufficient to show that it is not his intention to abandon it. Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty or a province, as an evidence that they do not relinquish their claims to it.

§ 146 Prescription founded on

Every proprietor who expressly commits, or omits, certain acts, which he cannot commit or omit without renouncing his right, sufficiently indicates by such commission or omission that it is not his intention to preserve it, unless, by an express reservation, he declare the contrary. We are undoubtedly authorized to consider as true what he sufficiently manifests on occasions where he ought to declare the truth: consequently, we may lawfully presume that he abandons his right; and, if he would afterwards resume it, we can plead prescription in bar to his claim.

§ 147. Usucaption and prescription take place between nations.

After having shown that usucaption and prescription are founded in the law of nature, it is easy to prove that they are equally a part of the law of nations, and ought to take place between different states. For, the law of nations is but the law of nature applied to nations in a manner suitable to the parties concerned (Prelim. § 6). And so far is the nature of the parties from affording them an exemption in the case, that usucaption and prescription are much more necessary between sovereign states than between individuals. Their quarrels are of much greater consequence; their disputes are usually terminated only by bloody wars; and consequently the peace and happiness of mankind much more powerfully require that possession on the part of sovereigns should not be easily disturbed, — and that, if it has for a considerable length of time continued uncontested, it should be deemed just and indisputable, were we allowed to recur to antiquity on every occasion, there are few sovereigns who could enjoy their rights in security, and there would be no peace to be hoped for on earth.

§ 148. More difficult between nations, to found them on a presumptive desertion.

It must however be confessed, that, between nations, the rights of usucaption and prescription are often more difficult in their application, so far as they are founded on a presumption drawn from long silence. Nobody is ignorant how dangerous it commonly is for a weak state even to hint a claim to the possessions of a powerful monarch. In such a case, therefore, it is not easy to deduce from long silence a legal presumption of abandonment. To this we may add, that, as the ruler of the society has usually no power to alienate what belongs to the state, his silence, even though sufficient to afford a presumption of abandonment on his own part, cannot impair the national right or that of his successors. The question then will be, whether the nation has neglected to supply the omission caused by the silence of her ruler, or has participated in it by a tacit approbation.

§ 149. Other principles that enforce prescription.

But there are other principles that establish the use and force of prescription between nations. The tranquillity of the people, the safety of states, the happiness of the human race, do not allow that the possessions, empire, and other rights of nations should remain uncertain, subject to dispute, and ever ready to occasion bloody wars. Between nations, therefore, it becomes necessary to admit prescription founded on length of time as a valid and incontestable title. If any nation has kept silence through fear, and as it were through necessity, the loss of her right is a misfortune which she ought patiently to bear, since she could not avoid it: and why should she not submit to this as well as to have her towns and provinces taken from her by an unjust conqueror, and to be forced to cede them to him by treaty? It is, however, only in cases of long-continued, undisputed, and uninterrupted possession, that prescription is established on these grounds, because it is necessary that affairs should some time or other be brought to a conclusion, and settled on a firm and solid foundation. But the case is different with a possession of only a few years' continuance, during which the party whose rights are invaded may from prudential reasons find it expedient to keep silence, without at the same time affording room to accuse him of suffering things to become uncertain, and of renewing quarrels without end.

As to immemorial prescription, what we have said respecting it (§ 143) is sufficient to convince every one that it ought necessarily to take place between nations.

§ 150. Effects of the voluntary law of nations on this subject.

Usucaption and prescription being so necessary to the tranquillity and happiness of human society, it is justly presumed that all nations have consented to admit the lawful and reasonable use of them, with a view to the general advantage, and even to the private interest of each individual nation.

Prescription of many years' standing, as well as usucaption, is, then, established by the voluntary law of nations (Prelim. § 21).

Nay, more, as by virtue of that law nations are, in all doubtful cases, supposed to stand on a footing of equal right in treating with each other (ibid.), prescription, when founded on long undisputed possession, ought to have its full effect between nations, without admitting any allegation of the possession being unjust, unless the evidence to prove it be very clear and convincing indeed. For, without such evidence, every nation is to be considered as a bona fide possessor. Such is the right that a sovereign state ought to allow to other states; but to herself she should only allow the use of the internal and necessary right (Prelim. § 28). It is the bona fide possessor alone whose prescription will stand the test of conscience.

§ 151. Law of treaties or of custom in this matter.

Since prescription is subject to so many difficulties, it would be very proper that adjoining nations should by treaty adopt some rule on this subject, particularly with respect to the number of years required to found a lawful prescription, since this latter point cannot in general be determined by the law of nature alone. If, in default of treaties, custom has determined any thing in this matter, the nations between whom this custom is in force, ought to conform to it (Prelim. § 26).


(123) We have seen that twenty years' undisturbed possession or enjoyment of an easement or profit amongst nations, as well as amongst private individuals, creates a right. See ante, 125 to 127; and see Benest v. Pipon, Knapp's Rep. 60 to 73; where see the law of nations fully examined. — C.

1. See Grotius de Jure Belli et Pacis, lib. ii. cap. lv. — Puffendorf, Jus Nat. et Gent. lib. iv. cap. xii. — and especially Wolfius, Jus Nat. part iii. cap. vii.


The LAW OF NATIONS - BOOK II.

CHAP. XII.

OF TREATIES OF ALLIANCE, AND OTHER PUBLIC TREATIES.

§ 152. Nature of treaties. (124)

THE subject of treaties is undoubtedly one of the most important that the mutual relations and affairs of nations can present us with. Having but too much reason to be convinced of the little dependence that is to be placed on the natural obligations of bodies politic, and on the reciprocal duties imposed upon them by humanity, — the most prudent nations endeavour to procure by treaties those succours and advantages which the law of nature would insure to them, if it were not rendered ineffectual by the pernicious counsels of a false policy.

A treaty, in Latin fœdus, is a compact made with a view to the public welfare by the superior power, either for perpetuity, or for a considerable time.

§ 153. Pactions, agreements, or conventions.

The compacts which have temporary matters for their object are called agreements, conventions, and pactions. They are accomplished by one single act, and not by repeated acts. These compacts are perfected in their execution once for all: treaties receive a successive execution whose duration equals that of the treaty.

§ 154. By whom treaties are made.

Public treaties can only be made by the superior powers, by sovereigns, who contract in the name of the state. Thus, conventions, made between sovereigns respecting their own private affairs, and those between a sovereign and a private person, are not public treaties.

The sovereign who possesses the full and absolute authority has, doubtless, a right to treat in the name of the state he represents; and his engagements are binding on the whole nation. But all rulers of states have not a power to make public treaties by their own authority alone: some are obliged to take the advice of a senate, or of the representatives of the nation. It is from the fundamental laws of each state that we must learn where resides the authority that is capable of contracting with validity in the name of the state.

Notwithstanding our assertion above, that public treaties are made only by the superior powers, treaties of that nature may nevertheless be entered into by princes or communities, who have a right to contract them, either by the concession of the sovereign, or by the fundamental laws of the state, by particular reservations, or by custom. Thus, the princes and free cities of Germany, though dependent on the emperor and the empire, have the right of forming alliances with foreign powers. The constitutions of the empire give them, in this as in many other respects, the rights of sovereignty. Some cities of Switzerland, though subject to a prince, have made alliances with the cantons: the permission or toleration of the sovereign has given birth to such treaties, and long custom has established the right to contract them.

§ 155. Whether a state under protection may make treaties.

As a state that has put herself under the protection of another, has not on that account forfeited her character of sovereignty (Book I. § 192), she may make treaties and contract alliances, unless she has, in the treaty of protection, expressly renounced that right. But she continues for ever after bound by this treaty of protection, so that she cannot enter into any engagements contrary to it, — that is to say, engagements which violate the express conditions of the protection, or that are in their own nature repugnant to every treaty of protection. Thus, the protected state cannot promise assistance to the enemies of her protector, nor grant them a passage.

§ 156. Treaties concluded by proxies or plenipotentiaries.

Sovereigns treat with each other through the medium of agents or proxies who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To their office we may apply all the rules of natural law which respect things done by commission. The rights of the proxy are determined by the instructions that are given him: he must not deviate from them; but every promise which he makes in the terms of his commission, and within the extent of his powers, is binding on his constituent.

At present, in order to avoid all danger and difficulty, princes reserve to themselves the power of ratifying what has been concluded upon in their name by their ministers. The plenipotentiary commission is but a procuration cum libera. If this commission were to have its full effect, they could not be too circumspect in giving it. But, as princes cannot otherwise than by force of arms be compelled to fulfil their engagements, it is customary to place no dependence on their treaties, till they have agreed to and ratified them. Thus, as every agreement made by the minister remains invalid till sanctioned by the prince's ratification, there is less danger in vesting him with unlimited powers. But, before a prince can honourably refuse to ratify a compact made in virtue of such plenipotentiary commission, he should be able to allege strong and substantial reasons, and, in particular, to prove that his minister has deviated from his instructions.

§ 157. Validity of treaties.

A treaty is valid if there be no defect in the manner in which it has been concluded: and for this purpose nothing more can be required than a sufficient power in the contracting parties, and their mutual consent sufficiently declared.

§ 158. Injury does

An injury cannot, then, render a treaty invalid, He who enters into engagements ought carefully to weigh every thing before he concludes them; he may do what he pleases with his own property, forego his rights, and renounce his advantages, as he thinks proper; the acceptor is not obliged to inquire into his motives, and to estimate their due weight. If we might recede from a treaty because we found ourselves injured by it, there would be no stability in the contracts of nations. Civil laws may set bounds to injury, and determine what degree of it shall be capable of invalidating a contract. But sovereigns are subject to no superior judge. How shall they be able to prove the injury to each other's satisfaction? Who shall determine the degree of it sufficient to invalidate a treaty? The peace and happiness of nations manifestly require that their treaties should not depend on so vague and dangerous a plea of invalidity.

§ 159. Duty of nations in this respect.

A sovereign nevertheless is in conscience bound to pay a regard to equity, and to observe it as much as possible in all his treaties. And, if it happens that a treaty which he has concluded with upright intentions, and without perceiving any unfairness in it, should eventually prove disadvantageous to an ally, nothing can be more honourable, more praiseworthy, more conformable to the reciprocal duties of nations, than to relax the terms of such treaty as far as he can do it consistently with his duty to himself, and without exposing himself to danger, or incurring a considerable loss.

§ 160. Nullity of treaties which are pernicious to the state.

Though a simple injury, or some disadvantage in a treaty, be not sufficient to invalidate it, the case is not the same with those inconveniences that would lead to the ruin of the nation. Since, in the formation of every treaty, the contracting parties must be vested with sufficient powers for the purpose, a treaty pernicious to the state is null, and not at all obligatory, as no conductor of a nation has the power to enter into engagements to do such things as are capable of destroying the state, for whose safety the government is intrusted to him. The nation itself, being necessarily obliged to perform every thing required for its preservation and safety (Book I. § 16, &c.), cannot enter into engagements contrary to its indispensable obligations. In the year 1506, the states-general of the kingdom of France, assembled at Tours, engaged Louis XII. to break the treaty he had concluded with the emperor Maximilian and the archduke Philip, his son, because that treaty was pernicious to the kingdom. They also decided that neither the treaty, nor the oath that had accompanied it, could be binding on the king, who had no right to alienate the property of the crown.1 We have treated of this latter source of invalidity in the twenty-first chapter of Book I.

§ 161. Nullity of treaties made for an unjust

For the same reason — the want of sufficient powers — a treaty concluded for an unjust or dishonest purpose is absolutely null and void, — nobody having a right to engage to do things contrary to the law of nature. Thus, an offensive alliance, made for the purpose of plundering a nation from whom no injury has been received, may or rather ought to be broken.

§ 162. Whether an alliance may be contracted with those who do not profess the true religion.

It is asked, whether it be allowable to contract an alliance with a nation that does not profess the true religion, and whether treaties made with the enemies of the faith are valid. Grotius has treated this subject at large:2 and the discussion might have been necessary at a time when party-rage still obscured those principles which it had long caused to be forgotten; but we may venture to believe that it would be superfluous in the present age. The law of nature alone regulates the treaties of nations: the difference of religion is a thing absolutely foreign to them. Different people treat with each other in quality of men, and not under the character of Christians, or of Mohammedans. Their common safety requires that they should be capable of treating with each other, and of treating with security. Any religion that should in this case clash with the law of nature, would, on the very face of it, wear the stamp of reprobation, and could not pretend to derive its origin from the great Author of nature, who is ever steady, ever consistent with himself. But, if the maxims of a religion tend to establish it by violence, and to oppress all those who will not embrace it, the law of nature forbids us to favour that religion, or to contract any unnecessary alliances with its inhuman followers, and the common safety of mankind invites them rather to enter into an alliance against such a people, — to repress such outrageous fanatics, who disturb the public repose and threaten all nations.

§ 163. Obligation of observing treaties.

It is a settled point in natural law, that he who has made a promise to any one has conferred upon him a real right to require the thing promised, — and, consequently, that the breach of a perfect promise is a violation of another person's right, and as evidently an act of injustice as it would be to rob a man of his property. The tranquillity, the happiness, the security of the human race, wholly depend on justice, — on the obligation of paying a regard to the rights of others. The respect which others pay to our rights of domain and property constitutes the security of our actual possessions; the faith of promises is our security for things that cannot be delivered or executed upon the spot. There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises. This obligation is, then, as necessary as it is natural and indubitable, between nations that live together in a state of nature, and acknowledge no superior upon earth, to maintain order and peace in their society. Nations, therefore, and their conductors, ought inviolably to observe their promises and their treaties. This great truth, though too often neglected in practice, is generally acknowledged by all nations:3 the reproach of perfidy is esteemed by sovereigns a most atrocious affront yet he who does not observe a treaty is certainly perfidious, since he violates his faith. On the contrary, nothing adds so great a glory to a prince, and to the nation he governs, as the reputation of an inviolable fidelity in the performance of promises. By such honourable conduct, as much or even more than by her valour, the Swiss nation has rendered herself respectable throughout Europe, and is deservedly courted by the greatest monarchs who intrust their personal safety to a body-guard of her citizens. The parliament of England has more than once thanked the king for his fidelity and zeal in succouring the allies of his crown. This national magnanimity is the source of immortal glory; it presents a firmer basis on which nations may build their confidence; and thus it becomes an unfailing source of power and splendour.

§ 164. The violation of a treaty is an act of injustice.

As the engagements of a treaty impose on the one hand a perfect obligation, they produce on the other a perfect right. The breach of a treaty is therefore a violation of the perfect right of the party with whom we have contracted; and this is an act of injustice against him.

§ 165. Treaties cannot be made contrary to those already existing.

A sovereign already bound by a treaty cannot enter into others contrary to the first. The things respecting which he has entered into engagements are no longer at his disposal. If it happens that a posterior treaty be found, in any particular point, to clash with one of more ancient date, the new treaty is null and void with respect to that point, inasmuch as it tends to dispose of a thing that is no longer in the power of him who appears to dispose of it. (We are here to be understood as speaking of treaties made with different powers.) If the prior treaty is kept secret, it would be an act of consummate perfidy to conclude a contrary one, which may be rendered void whenever occasion serves. Nay, even to enter into engagements, which, from the eventual turn of affairs, may chance at a future day to militate against the secret treaty, and from that very circumstance to prove ineffectual and nugatory, is by no means justifiable, unless we have the ability to make ample compensation to our new ally: otherwise it would be practising a deception on him, to promise him a thing without informing him that cases may possibly occur which will not allow us to substantiate our promise. The ally thus deceived is undoubtedly at liberty to renounce the treaty: but, if he chooses rather to adhere to it, it will hold good with respect to all the articles that do not clash with the prior treaty.

§ 166. How treaties may be concluded with several nations with the same view.

There is nothing to prevent a sovereign from entering into engagements of the same nature with two or more nations, if he be able to fulfil those several engagements to his different allies at the same time. For instance, a commercial treaty with one nation does not deprive us of the liberty of afterwards contracting similar engagements with other states, unless we have, in the former treaty, bound ourselves by a promise not to grant the same advantages to any other nation. We may in the same manner promise to assist two different allies with troops, if we are able to furnish them, or if there is no probability that both will have occasion for them at the same time.

§ 167. The more ancient ally entitled to a preference.

If nevertheless the contrary happens, the more ancient ally is entitled to a preference: for, the engagement was pure and absolute with respect to him; whereas we could not contract with the more recent ally, without a reservation of the rights of the former. Such reservation is founded in justice, and is tacitly understood, even if not expressly made.

§ 168. We owe no assistance in an unjust war.

The justice of the cause is another ground of preference between two allies. We ought even to refuse assistance to the one whose cause is unjust, whether he be at war with one of our allies, or with another state: to assist him on such occasion, would in the event be the same thing as if we had contracted an alliance for an unjust purpose; which we are not allowed to do (§ 161). No one can be validly engaged to support injustice.

§ 169. General division of treaties.

1. Those that relate to things already due by the law of nature.

Grotius divides treaties into two general classes, — first, those which turn merely on things to which the parties were already bound by the law of nature — secondly, those by which they enter into further engagements.4 By the former we acquire a perfect right to things to which we before had only an imperfect right, so that we may thenceforward demand as our due what before we could only request as an office of humanity. Such treaties became very necessary between the nations of antiquity, who, as we have already observed, did not think themselves bound to any duty towards people who were not in the number of their allies. They are useful even between the most polished nations, in order the better to secure the succours they may expect, — to determine the measure and degree of those succours, and to show on what they have to depend, — to regulate what cannot in general be determined by the law of nature, — and thus to obviate all difficulties, by providing against the various interpretations of that law. Finally, as no nation possesses inexhaustible means of assistance, it is prudent to secure to ourselves a peculiar right to that assistance which cannot be granted to all the world.

To this first class belong all simple treaties of peace and friendship, when the engagements which we thereby contract make no addition to those duties that men owe to each other as brethren and as members of the human society: such are those treaties that permit commerce, passage, &c.

§ 170. Collision of these treaties with the duties we owe to ourselves.

If the assistance and offices that are due by virtue of such a treaty should on any occasion prove incompatible with the duties a nation owes to herself, or with what the sovereign owes to his own nation, the case is tacitly and necessarily excepted in the treaty. For, neither the nation nor the sovereign could enter into an engagement to neglect the care of their own safety, or the safety of the state, in order to contribute to that of their ally. If the sovereign, in order to preserve his own nation, has occasion for the things he has promised in the treaty, — if, for instance, he has engaged to furnish corn, and in a time of dearth he has scarcely sufficient for the subsistence of his subjects, he ought without hesitation to give a preference to his own nation; for, it is only so far as he has it in his power to give assistance to a foreign nation, that he naturally owes such assistance; and it was upon that footing alone that he could promise it in a treaty. Now. it is not in his power to deprive his own nation of the means of subsistence in order to assist another nation at their expense. Necessity here forms an exception, and he does not violate the treaty because he cannot fulfil it.

§ 171. Treaties in which we barely promise to do no injury.

The treaties by which we simply agree not to do any evil to an ally, to abstain, with respect to him, from all harm, offence, and injury, are not necessary, and produce no new right, since every individual already possesses a perfect natural right to be exempt from harm, injury, and real offence. Such treaties, however, become very useful, and accidentally necessary, among those barbarous nations who think they have a right to act as they please towards foreigners. They are not wholly useless with nations less savage, who, without so far divesting themselves of humanity, entertain a much less powerful sense of a natural obligation, than of one which they have themselves contracted by solemn engagements: and would to god that his manner of thinking were entirety confined to barbarians! We see too frequent effects of it among those who boast of a perfection much superior to the law of nature. But the imputation of perfidy is prejudicial to the rules of nations, and thus becomes formidable even to those who are little solicitous to merit the appellation of virtuous men, and who feel no scruple in silencing the reproaches of conscience.

§ 172. Treaties concerning things that are not naturally due Equal Treaties.

Treaties by which we contract engagements that were not imposed on us by the law of nature, are either equal or unequal.

Equal treaties are those in which the contracting parties promise the same things, or things that are equivalent, or, finally, things that are equitably proportioned, so that the condition of the parties is equal. Such is, for example, a defensive alliance, in which the parties reciprocally stipulate for the same succours. Such is an offensive alliance, in which it is agreed that each of the allies shall furnish the same number of vessels, the same number of troops, of cavalry and infantry, or an equivalent in vessels, in troops, in artillery, or in money. Such is also a league in which the quota of each of the allies is regulated in proportion to the interest he takes or may have in the design of the league. Thus, the emperor and the king of England, in order to induce the states-general of the United Provinces to accede to the treaty of Vienna of the 16th of March, 1731, consented that the republic should only promise to her allies the assistance of four thousand foot and a thousand horse, though they engaged, in case of an attack upon the republic, to furnish her, each, with eight thousand foot and four thousand horse. We are also to place in the class of equal treaties those which stipulate that the allies shall consider themselves as embarked in a common cause, and shall act with all their strength. Notwithstanding a real inequality in their strength, they are nevertheless willing in this instance to consider it as equal.

Equal treaties may be subdivided into as many species as there are of different transactions between sovereigns. Thus, they treat of the conditions of commerce, of their mutual defence, of associations in war, of reciprocally granting each other a passage, or refusing it to the enemies of their ally; they engage not to build fortresses in certain places, &c. But it would be needless to enter into these particulars: generals are sufficient, and are easily applied to particular cases.

§ 173. Obligation of preserving equality in treaties

Nations being no less obliged than individuals to pay a regard to equity, they ought, as much as possible, to preserve equality in their treaties. When, therefore, the parties are able reciprocally to afford each other equal advantages, the law of nature requires that their treaties should be equal, unless there exist some particular reason for deviating from that equality, — such, for instance, as gratitude for a former benefit, — the hope of gaining the inviolable attachment of a nation, — some private motive, which renders one of the contracting parties particularly anxious to have the treaty concluded, &c. Nay, viewing the transaction in its proper point of light, the consideration of that particular reason restores to the treaty that equality which seems to be destroyed by the difference of the things promised.

I see those pretended great politicians smile, who employ all their subtlety in circumventing those with whom they treat, and in so managing the conditions of the treaty, that all the advantages shall accrue to their masters. Far from blushing at a conduct so contrary to equity, to rectitude and natural honesty, they glory in it, and think themselves entitled to the appellation of able negotiators. How long shall we continue to see men in public characters take a pride in practices that would disgrace a private individual? The private man, if he is void of conscience, laughs also at the rules of morality and justice; but he laughs in secret: it would be dangerous and prejudicial to him to make a public mockery of them. Men in power more openly sacrifice honour and honesty to present advantage: but, fortunately for mankind, it often happens that such seeming advantage proves fatal to them; and even between sovereigns, candour and rectitude be found to be the safest policy. All the subtleties, all the tergiversations of a famous minister, on the occasion of a treaty in which Spain was deeply interested, turned at length to his own confusion, and to the detriment of his master; while England, by her good faith and generosity to her allies, gained immense credit, and rose to the highest pitch of influence and respectability.

§ 174. Difference between equal treaties and equal alliances.

When people speak of equal treaties, they have commonly in their minds a double idea of equality, viz. equality in the engagements, and equality in the dignity of the contracting parties. It becomes therefore necessary to remove all ambiguity; and for that purpose, we may make a distinction between equal treaties and equal alliances. Equal treaties are those in which there is an equality in the promises made, as we have above explained (§ 172); and equal alliances, those in which equal treats with equal, making no difference in the dignity of the contracting parties, or, at least, admitting no too glaring superiority, but merely a pre-eminence of honour and rank. Thus kings treat with the emperor on a footing of equality, though they do not hesitate to allow him precedency; thus great republics treat with kings on the same footing, notwithstanding the pre-eminence which the former now-a-days yield to the latter. Thus all true sovereigns ought to treat with the most powerful monarch, since they are as really sovereigns, and as independent as himself. (See § 37 of this Book.)

§ 175. Unequal treaties and unequal alliances.

Unequal treaties are those in which the allies do not reciprocally promise to each other the same things, or things equivalent; and an alliance is unequal when it makes a difference in the dignity of the contracting parties. It is true, that most commonly an unequal treaty will be at the same time an unequal alliance; as great potentates are seldom accustomed to give or to promise more than is given or promised to them, unless such concessions be fully compensated in the article of honour and glory; and, on the other hand, a weak state does not submit to burdensome conditions without being obliged also to acknowledge the superiority of her ally.

Those unequal treaties that are at the same time unequal alliances, are divided into two classes, — the first consisting of those where the inequality prevails on the side of the more considerable power, — the second comprehending treaties where the inequality is on the side of the inferior power.

Treaties of the former class, without attributing to the more powerful of the contracting parties any right over the weaker, simply allow him a superiority of honours and respect. We have treated of this in Book I. § 5. Frequently a great monarch, wishing to engage a weaker state in his interest, offers her advantageous conditions, — promises her gratuitous succours, or greater than he stipulates for himself: but at the same time he claims a superiority of dignity, and requires respect from his ally. It is this last particular which renders the alliance unequal: and to this circumstance we must attentively advert; for, with alliances of this nature we are not to confound those in which the parties treat on a footing of equality, though the more powerful of the allies, for particular reasons, gives more than he receives, promises his assistance gratis, without requiring gratuitous assistance in his turn, or promises more considerable succours, or even the assistance of all his forces: — here the alliance is equal, but the treaty is unequal, unless indeed we may be allowed to say, that as the party who makes the greater concessions has a greater interest in concluding the treaty, this consideration restores the equality. Thus, at a time when France found herself embarrassed in a momentous war with the house of Austria, and the cardinal de Richelieu wished to humble that formidable power, he, like an able minister, concluded a treaty with Gustavus Adolphus, in which all the advantage appeared to be on the side of Sweden. From a bare consideration of the stipulations of that treaty, it would have been pronounced an unequal one; but the advantages which France derived from it, amply compensated for that inequality. The alliance of France with the Swiss, if we regard the stipulations alone, is an unequal treaty; but the valour of the Swiss troops has long since counterbalanced that inequality; and the difference in the interests and wants of the parties serves still further to preserve the equilibrium. France, often involved in bloody wars, has received essential services from the Swiss: the Helvetic body, void of ambition, and untainted with the spirit of conquest, may live in peace with the whole world; they have nothing to fear, since they have feelingly convinced the ambitious, that the love of liberty gives the nation sufficient strength to defend her frontiers. This alliance may at certain times have appeared unequal: — our forefathers5 paid little attention to ceremony: — but, in reality, and especially since the absolute independence of the Swiss is acknowledged by the empire itself, the alliance is certainly equal, although the Helvetic body do not hesitate to yield to the king of France all that pre-eminence which the established usage of modern Europe attributes to crowned heads, and especially to great monarchs.

Treaties in which the inequality prevails on the side of the inferior power —; that is to say, those which impose on the weaker party more extensive obligations or greater burdens, or bind him down to oppressive or disagreeable conditions, — these unequal treaties, I say, are always at the same time unequal alliances; for, the weaker party never submits to burdensome conditions, without being obliged also to acknowledge the superiority of his ally. These conditions are commonly imposed by the conqueror, or dictated by necessity, which obliges a weak state to seek the protection or assistance of another more powerful; and by this very step, the weaker state acknowledges her own inferiority. Besides, this forced inequality in a treaty of alliance is a disparagement to her, and lowers her dignity, at the same time that it exalts that of her more powerful ally. Sometimes, also, the weaker state not being in a condition to promise the same succours as the more powerful one, it becomes necessary that she should compensate for her inability in this point, by engagements which degrade her below her ally, and often even subject her, in various respects, to his will. Of this kind are all those treaties in which the weaker party alone engages not to make war without the consent of her more powerful ally, — to have the same friends and the same enemies with him, — to support and respect his dignity, — to have no fortresses in certain places, — not to trade or raise soldiers in certain free countries, — to deliver up her vessels of war, and not to build others, as was the case of the Carthaginians when treating with their Roman conquerors, — to keep up only a certain number of troops, &c.

These unequal alliances are subdivided into two kinds; they either impair the sovereignty, or they do not. We have slightly touched on this in Book I. Ch. I. and XVI.

The sovereignty subsists entire and unimpaired when none of its constituent rights are transferred to the superior ally, or rendered, as to the exertion of them, dependent on his will. But the sovereignty is impaired when any of its rights are ceded to an ally, or even if the use of them be merely rendered dependent on the will of that ally. For example, the treaty does not impair the sovereignty, if the weaker state only promises not to attack a certain nation without the consent other ally. By such an engagement she neither divests herself of her right, nor subjects the exertion of it to another's will; she only consents to a restriction in favour of her ally: and thus she incurs no greater diminution of liberty than is incurred by promises of every kind. Such reservations are every day stipulated in alliances that are perfectly equal. But, if either of the contracting parties engages not to make war against any one whatsoever without the consent or permission of an ally who on his side does not make the same promise, the former contracts an unequal alliance, with diminution of sovereignty; for he deprives himself of one of the most important branches of the sovereign power, or renders the exertion of it dependent on another's will. The Carthaginians having, in the treaty that terminated the second Punic war, promised not to make war on any state without the consent of the Roman people, were thenceforward, and for that reason, considered as dependent on the Romans.

§ 176. How an alliance with diminution of sovereignty may annul preceding treaties.

When a nation is forced to submit to the will of a superior power, she may lawfully renounce her former treaties, if the party with whom she is obliged to enter into an alliance requires it of her. As she then loses a part other sovereignty, their ancient treaties fall to the ground together with the power that had concluded them. This is a necessity that cannot be imputed to her as a crime: and since she would have a right to place herself in a state of absolute subjection, and to renounce her own sovereign, if she found such measures necessary for her preservation, — by a much stronger reason, she has a right, under the same necessity, to abandon her allies. But a generous people will exhaust every resource before they will submit to terms so severe and so humiliating.

§ 177. We ought to avoid as much as possible making unequal alliances.

In general, as every nation ought to be jealous of her glory, careful of maintaining her dignity, and preserving her independence, nothing short of the last extremity, or motives the most weighty and substantial, ought ever to induce a people to contract an unequal alliance. This observation is particularly meant to apply to treaties where the inequality prevails on the side of the weaker ally, and still more particularly to those unequal alliances that degrade the sovereignty. Men of courage and spirit will accept such treaties from no other hands but those of imperious necessity.

§ 178. Mutual duties of nations with respect to unequal alliances.

Notwithstanding every argument which selfish policy may suggest to the contrary, we must either pronounce sovereigns to be absolutely emancipated from all subjection to the law of nature, or agree that it is not lawful for them, without just reasons, to compel weaker states to sacrifice their dignity, much less their liberty, by unequal alliances. Nations owe to each other the same assistance, the same respect, the same friendship, as individuals living in a state of nature. Far from seeking to humble a weaker neighbour, and to despoil her of her most valuable advantages, they will respect and maintain her dignity and her liberty, if they are inspired by virtue more than by pride — if they are actuated by principles of honour more than by the manner views of sordid interest — nay, if they have but sufficient discernment to distinguish their real interests. Nothing more firmly secures the power of a great monarch than his attention and respect to all other sovereigns. The more cautious he is to avoid offending his weaker brethren, the greater esteem he testifies for them, the more will they revere him in turn; they feel an affection for a power whose superiority over them is displayed only by the conferring of favours: they cling to such a monarch as their prop and support, and he becomes the arbiter of nations. Had his demeanour been stamped with arrogance, he would have been the object of their jealousy and fear, and might perhaps have one day sunk under their united efforts.

§ 179. In alliances where the inequality is on the side of the more powerful party.

But as the weaker party ought, in his necessity, to accept with gratitude the assistance of the more powerful, and not to refuse him such honours and respect as are flattering to the person who receives them, without degrading him by whom they are rendered; so, on the other hand, nothing is more conformable to the law of nature than a generous grant of assistance from the more powerful state, unaccompanied by any demand of a return, or, at least, of an equivalent. And in this instance also, there exists an inseparable connection between interest and duty. Sound policy holds out a caution to a powerful nation not to suffer the lesser states in her neighbourhood to be oppressed. If she abandon them to the ambition of a conqueror, he will soon become formidable to herself. Accordingly, sovereigns, who are in general sufficiently attentive to their own interests, seldom fail to reduce this maxim to practice. Hence those alliances, sometimes against the house of Austria, sometimes against its rival, according as the power of the one or the other preponderates. Hence that balance of power, the object of perpetual negotiations and wars.

When a weak and poor nation has occasion for assistance of another kind — when she is afflicted by famine — we have seen (§ 5), that those nations who have provisions ought to supply her at a fair price. It were noble and generous to furnish them at an under price, or to make her a present of them, if she be incapable of paying their value. To oblige her to purchase them by an unequal alliance, and especially at the expense of her liberty — to treat her as Joseph formerly treated the Egyptians — would be a cruelty almost as dreadful as suffering her to perish with famine.

§ 180. How inequality of treaties and a alliances may be conformable to the law of nature.

But there are cases where the inequality of treaties and alliances, dictated by some particular reasons, is not contrary to equity, nor, consequently, to the law of nature. Such, in general, are all those cases in which the duties that a nation owes to herself, or those which she owes to other nations, prescribe to her a departure from the line of equality. If, for instance, a weak state attempts, without necessity, to erect a fortress, which she is incapable of defending, in a place where it might become very dangerous to her neighbour if ever it should fall into the hands of a powerful enemy, that neighbour may oppose the construction of the fortress; and, if he does not find it convenient to pay the lesser state a compensation for complying with his desire, he may force her compliance, by threatening to block up the roads and avenues of communication, to prohibit all intercourse between the two nations, to build fortresses, or to keep an army on the frontier, to consider that little state in a suspicious light, &c. He thus indeed imposes an unequal condition; but his conduct is authorized by the care of his own safety. In the same manner he may oppose the forming of a highway, that would open to an enemy an entrance into his state. War might furnish us with a multitude of other examples. But rights of this nature are frequently abused; and it requires no less moderation than prudence to avoid turning them into oppression.

Sometimes those duties to which other nations have a claim, recommend and authorize inequality in a contrary sense, without affording any ground of imputation against a sovereign, of having neglected the duty which he owes to himself or to his people. Thus, gratitude — the desire of showing his deep sense of a favour received — may induce a generous sovereign to enter into an alliance with joy, and to give in the treaty more than he receives.

§ 181. Inequality imposed by way of punishment.

It is also consistent with justice to impose the conditions of an unequal treaty, or even an unequal alliance, by way of penalty, in order to punish an unjust aggressor, and render him incapable of easily injuring us for the time to come. Such was the treaty to which the elder Scipio Africanus forced the Carthaginians to submit, after he had defeated Hannibal. The conqueror often dictates such terms: and his conduct in this instance is no violation of the laws of justice or equity, provided he do not transgress the bounds of moderation, after he has been crowned with success in a just and necessary war.

§ 182. Other kinds of which we have spoken elsewhere.

The different treaties of protection — those by which a state renders itself tributary or feudatory to another — form so many different kinds of unequal alliances. But we shall not repeat here what we have said respecting them in Book I. Chap. I. and XVI.

§ 183. Personal and real treaties.

By another general division of treaties or alliances, they are distinguished into personal and real: the former are those that relate to the persons of the contracting parties, and are confined and in a manner attached to them. Real alliances relate only to the matters in negotiation between the contracting parties, and are wholly independent of their persons.

A personal alliance expires with him who contracted it.

A real alliance attaches to the body of the state, and subsists as long as the state, unless the period of its duration has been limited.

It is of considerable importance not to confound these two sorts of alliances. Accordingly, sovereigns are at present accustomed to express themselves in their treaties in such a manner as to leave no uncertainty in this respect: and this is doubtless the best and safest method. In default of this precaution, the very subject of the treaty, or the expressions in which it is couched, may furnish a clue to discover whether it be real or personal. On this head we shall lay down some general rules.

§ 184. Naming the contracting parties in the treaty does not render it personal.

In the first place, we are not to conclude that a treaty is a personal one from the bare circumstance of its naming the contracting sovereigns: for, the name of the reigning sovereign is often inserted with the sole view of showing with whom the treaty has been concluded, without meaning thereby to intimate that it has been made with himself personally. This is an observation of the civilians Pedius and Ulpian,6 repeated by all writers who have treated of these subjects.

§ 185. An alliance made by a republic is real.

Every alliance made by a republic is in its own nature real, for it relates only to the body of the state. When a free people, a popular state, or an aristocratical republic, concludes a treaty, it is the state herself that contracts; and her engagements do not depend on the lives of those who were only the instruments in forming them: the members of the people, or of the governing body, change and succeed each other; but the state still continues the same.

Since, therefore, such a treaty directly relates to the body of the state, it subsists, though the form of the republic should happen to be changed — even though it should be transformed into a monarchy. For, the state and the nation are still the same, notwithstanding every change that may take place in the form of the government; and the treaty concluded with the nation remains in force as long as the nation exists. But it is manifest that all treaties relating to the form of government are exceptions to this rule. Thus two popular states, that have treated expressly, or that evidently appear to have treated, with the view of maintaining themselves in concert in their state of liberty and popular government, cease to be allies from the very moment that one of them has submitted to be governed by a single person.

§ 186. Treaties concluded by kings or other monarchs.

Every public treaty, concluded by a king or by any other monarch, is a treaty of the state; it is obligatory on the whole state, on the entire nation which the king represents, and whose power and rights he exercises. It seems then at first view, that every public treaty ought to be presumed real, as concerning the state itself. There can be no doubt with respect to the obligation to observe the treaty; the only question that arises, is respecting its duration. Now, there is often room to doubt whether the contracting parties have intended to extend their reciprocal engagements beyond the term of their own lives, and to bind their successors. Conjunctures change; a burden that is at present light, may in other circumstances become insupportable, or at least oppressive: the manner of thinking among sovereigns is no less variable; and there are certain things of which it is proper that each prince should be at liberty to dispose according to his own system. There are others that are freely granted to one king, and would not be allowed to his successor. It therefore becomes necessary to consider the terms of the treaty, or the matter which forms the subject of it, in order to discover the intentions of the contracting powers.

§ 187. Perpetual treaties, and those for a certain time.

Perpetual treaties, and those made for a determinate period, are real ones, since their duration cannot depend on the lives of the contracting parties.

§ 188. Treaties made for the king and his successors.

In the same manner, when a king declares in the treaty that it is made "for himself and his successors," it is manifest that this a real treaty. It attaches to the state, and is intended to last as long as the kingdom itself.

§ 189. Treaties made for the good of the kingdom.

When a treaty expressly declares that it is made for the good of the kingdom, it thus furnishes an evident proof that the contracting powers did not mean that its duration should depend on that of their own lives, but on that of th