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, acceptlum, quam concilia coestusque hominum jure sociati, 

qu� civitates appellantur." Cicero, Som Scip. 



             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. 





              Prefaces to the several

              editions



              Detailed Table of Contents



              Preliminaries



              Book I



              Book II



              Book III



              Book IV



              Index



              Commentaries by Chitty and

              others



____________



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 







 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.







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.







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.







                      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.







         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







                      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 Bud�us'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 law, 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 maxim�)

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 stales. 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 natur�. 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 per�que 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 human� jura qu�dam sibi constituerunt. Bella

etenim orta sunt, et captivitates secut� et servitutes, qu� sunt naturali juri

contrari�. Jure enim naturali omnes homines ab initio liberi nascebantur Id. � 2. 



5. Feciales, quod fidel public� inter populos pr�rant: 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. qu� sola obtinuit

dici lex Natur�, et naturalem civitatum, qu� dici potest Lex Gentium, vulgo

autem Jus Gentium appellatur. Pr�cepta utriusque eadem sunt: sed quia

civitates semel institut� 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 Bud�us'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.



____________



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 Stale, 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 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 stale, 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.



13. 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 stale 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.



353. 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 stales 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 stale 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



                 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 stales 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 bo 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. 



____________



                       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 ifs 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 Monarch. (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.







                      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.







                     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. It 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 fat 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 voles; 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.







                     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 thesafety 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 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. 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







                      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)



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.







                     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.







                     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.







                     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.







                      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.







                      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.







                      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. (53)



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.)







                     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.







                     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,"







                     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.



§ 176. 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.







                     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.







                     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.







                    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.







                     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



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.







                     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.







                     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. Government of



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 superior 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.







                     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.







                    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. What is the case when the 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



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,







                    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.





____________





                      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 toother 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.







                      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 loo 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.)







                     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.



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.







                     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.







                      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.







                     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 cltizens.



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.







                     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.







                     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.) 



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.)







                      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.



§ 116. 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 







                      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.







                      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.







                     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 the kingdom itself. Such treaty is therefore a real one.



Independently even of this express declaration, when a treaty is made

for the purpose of procuring to the state a certain advantage which is in

its own nature permanent and unfailing, there is no reason to suppose

that the prince by whom the treaty has been concluded, intended to

limit it to the duration of his own life. Such a treaty ought therefore to

be considered as a real one, unless there exist very powerful evidence

to prove that the party with whom it was made granted the advantage

in question only out of regard to the prince then reigning, and as a

personal favour: in which case the treaty terminates with the life of the

prince, as the motive for the concession expires with him. But such a

reservation is not to be presumed on slight grounds: for, it would seem,

that, if the contracting parties had had it in contemplation, they should

have expressed it in the treaty.



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



In case of doubt, where there exists no circumstance by which we can

clearly prove either the personality or the reality of a treaty, it ought to

be presumed a real treaty if it chiefly consists of favourable articles, --

if of odious ones, a personal treaty. By favourable articles we mean

those which tend to the mutual advantage of the contracting powers,

and which equally favour both parties; by odious articles, we

understand those which onerate one of the parties only, or which

impose a much heavier burden upon the one than upon the other. We

shall treat this subject more at large in the chapter on the "Interpretation

of Treaties." Nothing is more conformable to reason and equity than

this rule. Whenever absolute certainty is unattainable in the affairs of

men, we must have recourse to presumption. Now, if the contracting

powers have not explained themselves, it is natural, when the question

relates to things favourable, and equally advantageous to the two allies,

to presume that it was their intention to make a real treaty, as being the

more advantageous to their respective kingdoms: and if we are

mistaken in this presumption, we do no injury to either party. But, if

there be any thing odious in the engagements, -- if one of the

contracting states finds itself overburdened by them, -- how can it be

presumed that the prince who entered into such engagements intended

to lay that burden upon his kingdom in perpetuity? Every sovereign is

presumed to desire the safety and advantage of the state with which he

is intrusted: wherefore it cannot be supposed that he has consented to

load it for ever with a burdensome obligation. If necessity rendered

such a measure unavoidable, it was incumbent on his ally to have the

matter explicitly ascertained at the time; and it is probable that he

would not have neglected this precaution, well knowing that mankind in

general, and sovereigns in particular, seldom submit to heavy and

disagreeable burdens, unless bound to do so by formal obligations. If it

happens then that the presumption is a mistake, and makes him lose

something of his right, it is a consequence of his own negligence. To this

we may add, that, if either the one or the other must sacrifice a part of

his right, it will be a less grievous violation of the laws of equity that the

latter should forego an expected advantage, than that the former should

suffer a positive loss and detriment. This is the famous distinction de

lucro captando, and de damno vitando.



We do not hesitate to include equal treaties of commerce in the number

of those that are favourable, since they are in general advantageous,

and perfectly conformable to the law of nature. As to alliances made on

account of war, Grotius says with reason, that "defensive alliances are

more of a favourable nature, -- offensive alliances have something in

them that approaches nearer to what is burdensome or odious."7



We could not dispense with the preceding brief summary of those

discussions, lest we should in this part of our treatise leave a disgusting

chasm. They are, however, but seldom resorted to in modern practice,

as sovereigns at present generally take the prudent precaution of

explicitly ascertaining the duration of their treaties. They treat for

themselves and their successors, -- for a certain number of years, &c.

-- or they treat only for the time of their own reign, -- for an affair

peculiar to themselves, -- for their families, &c.



§ 191. The obligations and rights resulting



Since public treaties, even those of a personal nature, concluded by a

king, or by any other sovereign who is invested with sufficient power,

are treaties of the state, and obligatory on the whole nation (§ 186),

real treaties, which were intended to subsist independently of the

person who has concluded them, are undoubtedly binding on his

successors; and the obligation which such treaties impose on the state

passes successively to all her rules as soon as they assume the public

authority. The case is the same with respect to the rights acquired by

those treaties: they are acquired for the sate, and successively pass to

her conductors.



It is at present a pretty general custom for the successor to confirm or

renew even real alliances concluded by his predecessors: and prudence

requires that this precaution should not be neglected, since men pay

greater respect to an obligation which they have themselves contracted,

than to one which devolves on them from another quarter, or to which

they have only tacitly subjected themselves. The reason is, that, in the

former case, they consider their word to be engaged, and, in the latter,

their conscience alone.



§ 192. Treaties accomplished once for all and perfected.



The treaties that have no relation to the performance of reiterated acts,

but merely relate to transient and single acts which are concluded at

once, -- those treaties (unless indeed it be more proper to call them by

another name8) -- those conventions, those compacts, which are

accomplished once for all, and not by successive acts, -- are no

sooner executed than they are completed and perfected. If they are

valid, they have in their own nature a perpetual and irrevocable effect:

nor have we them in view when we inquire whether a treaty be real or

personal. Puffendorf9 gives us the following rules to direct us in this

inquiry -- "1. That the successors are bound to observe the treaties of

peace concluded by their predecessors. 2. That a successor should

observe all the lawful conventions by which his predecessor has

transferred any right to a third party." This is evidently wandering from

the point in question: it is only saying that what is done with validity by a

prince, cannot be annulled by his successors. -- And who doubts it? A

treaty of peace is in its own nature made with a view to its perpetual

duration: and, as soon as it is once duly concluded and ratified, the

affair is at an end; the treaty must be accomplished on both sides, and

observed according to its tenor. If it is executed upon the spot, there

ends the business at once. But, if the treaty contains engagements for

the performance of successive and reiterated acts, it will still be

necessary to examine, according to the rules we have laid down,

whether it be in this respect real or personal, -- whether the

contracting parties intended to bind their successors to the performance

of those acts, or only promised them for the time of their own reign. In

the same manner, as soon as a right is transferred by a lawful

convention, it no longer belongs to the state that has ceded it; the affair

is concluded and terminated. But, if the successor discovers any flaw in

the deed of transfer, and proves it, he is not to be accused of

maintaining that the convention is not obligatory on him, and refusing to

fulfil it; -- he only shows that such convention has not taken place; for

a defective and invalid deed is a nullity, and to be considered as having

never existed.



§ 193. Treaties already accomplished on the one part.



The third rule given by Puffendorf is no less useless with respect to this

question. It is, "that if, after the other ally has already executed

something to which he was bound by virtue of the treaty, the king

happens to die before he has accomplished in his turn what he had

engaged to perform, his successor is indispensably obliged to perform

it. For, what the other ally has executed under the condition of

receiving an equivalent, having turned to the advantage of the state, or

at least having been done with that view, it is clear that, if he does not

receive the return for which he had stipulated, he then acquires the

same right as a man who has paid what he did not owe; and, therefore,

the successor is obliged to allow him a complete indemnification for

what he has done or given, or to make good, on his own part, what his

predecessor had engaged to perform." All this, I say, is foreign to our

question. If the alliance is real, it still subsists, notwithstanding the death

of one of the contracting parties; if it is personal, it expires with them,

or either of them (§ 183). But, when a personal alliance comes to be

dissolved in this manner, it is quite a different question to ascertain what

one of the allied states is bound to perform, in case the other has

already executed something in pursuance of the treaty: and this question

is to be determined on very different principles. It is necessary to

distinguish the nature of what has been done pursuant to the treaty. If it

has been any of those determinate and substantial acts which it is usual

with contracting parties mutually to promise to each other in exchange,

or by way of equivalent, there can be no doubt that he who has

received, ought to give what he has promised in return, if he would

adhere to the agreement, and is obliged to adhere to it: if he is not

bound, and is unwilling to adhere to it, he ought to restore what he has

received, to replace things in their former state, or to indemnify the ally

from whom he has received the advantage in question. To act

otherwise, would be keeping possession of another's property. In this

case, the ally is in the situation, not of a man who has paid what he did

not owe, but of one who has paid beforehand for a thing that has not

been delivered to him. But, if the personal treaty related to any of those

uncertain and contingent ads which are to be performed as occasions

offer, -- of those promises which are not obligatory if an opportunity

of fulfilling them does not occur, -- it is only on occasion likewise that

the performance of similar acts is due in return: and, when the term of

the alliance is expired, neither of the parties remains bound by any

obligation. In a defensive alliance, for instance, two kings have

reciprocally promised each other a gratuitous assistance during the term

of their lives: one of them is attacked: he is succoured by his ally, and

dies before he has an opportunity to succour him in his turn: the alliance

is at an end, and no obligation thence devolves on the successor of the

deceased, except indeed that he certainly owes a debt of gratitude to

the sovereign who has given a salutary assistance to his state. And we

must not pronounce such an alliance an injurious one to the ally who

has given assistance without receiving any. His treaty was one of those

speculating contracts in which the advantages or disadvantages wholly

depend on chance: he might have gained by it, though it has been his

fate to lose.



We might here propose another question. The personal alliance

expiring at the death of one of the allies, if the survivor, under an idea

that it is to subsist with the successor, fulfils the treaty on his part in

favour of the latter, defends his country, saves some of his towns, or

furnishes provision for his army, -- what ought the sovereign to do,

who is thus succoured? He ought, doubtless, either to suffer the alliance

to subsist, as the ally of his predecessor has conceived that it was to

subsist (and this will be a tacit renewal and extension of the treaty) --

or to pay for the real service he has received, according to a just

estimate of its importance, if he does not choose to continue that

alliance. It would be in such a case as this that we might say with

Puffendorf, that he who has rendered such a service has acquired the

right of a man who has paid what he did not owe.



§ 194. The personal alliance expires if one of the contracting

powers ceases to reign.



The duration of a personal alliance being restricted to the persons of

the contracting sovereigns, -- if, from any cause whatsoever, one of

them ceases to reign, the alliance expires: for they have contracted in

quality of sovereigns; and he who ceases to reign no longer exists as a

sovereign, though he still lives as a man.



§ 195. Treaties in their own nature



Kings do not always treat solely and directly for their kingdoms;

sometimes, by virtue of the power they have in their hands, they make

treaties relative to their own persons, or their families; and this they may

lawfully do, as the welfare of the state is interested in the safety and

advantage of the sovereign, properly understood. These treaties are

personal in their own nature, and expire, of course, on the death of the

king or the extinction of his family. Such is an alliance made for the

defence of a king and his family. 



§ 196. Alliance concluded for the defence of the king and the



It is asked, whether such an alliance subsists with the king and the royal

family, when, by some revolution, they are deprived of the crown. We

have remarked above (§ 194), that a personal alliance expires with the

reign of him who contracted it: but that is to be understood of an

alliance formed with the state, and restricted, in its duration, to the reign

of the contracting king. But the alliance of which we are now to treat, is

of another nature. Although obligatory on the state, since she is bound

by all the public acts of her sovereign, it is made directly in favour of

the king and his family: it would, therefore, be absurd that it should be

dissolved at the moment when they stand in need of it, and by the very

event which it was intended to guard against. Besides, the king does

not forfeit the character of royalty merely by the loss of his kingdom. If

he is unjustly despoiled of it by an usurper, or by rebels, he still

preserves his rights, among which are to be reckoned his alliances.



But who shall judge whether a king has been dethroned lawfully or by

violence? An independent nation acknowledges no judge. If the body

of the nation declare that the king has forfeited his right, by the abuse

he has made of it, and depose him, they may justly do it when their

grievances are well founded; and no other power has a right to censure

their conduct. The personal ally of this king ought not, therefore, to

assist him against the nation who have made use of their right in

deposing him: if he attempts it, he injures that nation. England declared

war against Louis XIV., in the year 1688, for supporting the interests

of James II., who had been formally deposed by the nation, The same

country declared war against him a second time, at the beginning of the

present century, because that prince acknowledged the son of the

deposed monarch, under the title of James III. In doubtful cases, and

when the body of the nation has not pronounced, or has not

pronounced freely, a sovereign ought naturally to support and defend

an ally; and it is then that the voluntary law of nations subsists between

different states. The party who have expelled the king maintain that they

have right on their side: the unfortunate prince and his allies flatter

themselves with having the same advantage; and, as they have no

common judge upon earth, there remains no other mode of deciding

the contest than an appeal to arms: they, therefore, engage in a formal

war.



Finally, when the foreign prince has faithfully fulfilled his engagements

towards an unfortunate monarch, when he has done, in his defence, or

to procure his restoration, every thing which, by the terms of the

alliance, he was bound to do, -- if his efforts have proved ineffectual, it

cannot be expected, by the dethroned prince, that he shall support an

endless war in his favour, -- that he shall for ever continue at enmity

with the nation or the sovereign who has deprived him of the throne.

He must at length think of peace, abandon his unfortunate ally, and

consider him as having himself abandoned his right through necessity.

Thus, Louis XIV. was obliged to abandon James II, and to

acknowledge King William, though he had at first treated him as an

usurper. 



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

deposed. 



The same question presents itself in real alliances, and, in general, in all

alliances made with a state, and not in particular with a king, for the

defence of his person. An ally ought, doubtless, to be defended against

every invasion, against every foreign violence, and even against his

rebellious subjects; in the same manner a republic ought to be defended

against the enterprises of one who attempts to destroy the public

liberty. But the other party in the alliance ought to recollect that he is

the ally, and not the judge, of the state or the nation. If the nation has

deposed her king in form, -- if the people of a republic have expelled

their magistrates, and set themselves at liberty, or, either expressly or

tacitly, acknowledged the authority of an usurper, -- to oppose these

domestic regulations, or to dispute their justice or validity, would be

interfering in the government of the nation, and doing her an injury (see

§§ 54, &c. of this Book.) The ally remains the ally of the state,

notwithstanding the change that has happened in it. However, if this

change renders the alliance useless, dangerous, or disagreeable to him

he is at liberty to renounce it: for, he may upon good grounds assert

that he would not have entered into an alliance with that nation, had she

been under her present form of government.



To this case we may also apply what we have said above respecting a

personal ally. However just the cause of that king may be, who is

expelled from the throne either by his subjects or by a foreign usurper,

his allies are not obliged to support an eternal war in his favour. After

having made ineffectual efforts to reinstate him, they must at length

restore to their people the blessings of peace; they must come to an

accommodation with the usurper, and for that purpose treat with him as

with a lawful sovereign. Louis XIV., finding himself exhausted by a

bloody and unsuccessful war, made an offer, at Gertruydenberg, to

abandon his grandson, whom he had placed on the throne of Spain:

and afterwards, when the aspect of affairs was changed, Charles of

Austria, the rival of Philip, saw himself, in his turn, abandoned by his

allies. They grew weary of exhausting their states in order to put him in

possession of a crown to which they thought him justly entitled, but

which they no longer saw any probability of being able to procure for

him.







(124) See in general, as to the law of nations respecting treaties, post,

Book IV. Chap. II. &c., page 432 to 452, 1 Chitty's Commercial

Law, 38 to 47; and, as to commercial treaties in particular, 53 and 615

to 630; and see each separate treaty, 2 Chitty's Com. Law, p. 183.



1. See the French historians.



2. De Jure Belli et Pacis lib. ii. cap. xv. § 8, et sez.



3. Mohammed warmly recommended to his disciples the observance

of treaties. -- Ockley's History of the Saracens, vol. i.



4. De Jure Belli et Pacis, lib. ii, cap. xv. § 5.



5. The author was a native of Switzerland.



6. Digest, lib. ii. tit. xiv. de Pactis, leg. vii. § 8.



7. De Jure Belli et Pacis, lib. ii. cap. xvi. § 16.



8. See Chap. XII. § 153, of this book. 



9. Law of Nature and Nations, book 8, c. 9, § 8.







                     CHAP. XIII. 

     OF THE DISSOLUTION AND RENEWAL OF

                   TREATIES. (125)



§ 198. Expiration of alliances made for a limited time.



N alliance is dissolved at the expiration of the term for which it had

been concluded. This term is sometimes fixed, as, when an alliance is

made for a certain number of years; sometimes it is uncertain, as in

personal alliances, whose duration depends on the livAes of the

contracting powers. The term is likewise uncertain, when two or more

sovereigns form an alliance with a view to some particular object; as,

for instance, that of expelling a horde of barbarous invaders from a

neighbouring country, -- of reinstating a sovereign on his throne, &c.

The duration of such an alliance depends on the completion of the

enterprise for which it was formed. Thus, in the last-mentioned

instance, when the sovereign is restored, and so firmly seated on his

throne as to be able to retain the undisturbed possession of it, the

alliance, which was formed with a sole view to his restoration, is now at

an end. But, on the other hand, if the enterprise prove unsuccessful, --

the moment his allies are convinced of the impossibility of carrying it

into effect, the alliance is likewise at an end; for it is time to renounce an

undertaking when it is acknowledged to be impracticable.



§ 199. Renewal of treaties.



A treaty entered into for a limited time may be renewed by the

common consent of the allies, -- which consent may be either

expressly or tacitly made known. When the treaty is expressly

renewed, it is the same as if a new one were concluded, in all respects

similar to the former.



The tacit renewal of a treaty is not to be presumed upon slight grounds;

for, engagements of so high importance are well entitled to the formality

of an express consent. The presumption, therefore, of a tacit renewal

must be founded on acts of such a nature as not to admit a doubt of

their having been performed in pursuance of the treaty. But, even in this

case, still another difficulty arises: for, according to the circumstances

and nature of the acts in question, they may prove nothing more than a

simple continuation or extension of the treaty, -- which is very different

from a renewal, especially as to the term of duration. For instance,

England has entered into a subsidiary treaty with a German prince, who

is to keep on foot, during ten years, a stated number of troops at the

disposal of that country, on condition of receiving from her a certain

yearly sum. The ten years being expired, the king of England causes the

sum stipulated for one year to be paid: the ally receives it: thus the

treaty is indeed tacitly continued for one year; but it cannot be said to

be renewed; for the transaction of that year does not impose an

obligation of doing the same thing for ten years successively. But,

supposing a sovereign has, in consequence of an agreement with a

neighbouring state, paid her a million of money for permission to keep a

garrison in one of her strongholds during ten years, -- if, at the

expiration of that term, the sovereign, instead of withdrawing his

garrison, makes his ally a tender of another million, and the latter

accepts it, the treaty is, in this case, tacitly renewed.



When the term for which the treaty was made is expired, each of the

allies is perfectly free, and may consent or refuse to renew it, as he

thinks proper. It must, however, be confessed, that if one of the

parties, who has almost singly reaped all the advantages of the treaty,

should, without just and substantial reasons, refuse to renew it now that

he thinks he will no longer stand in need of it, and forsees the time

approaching when his ally may derive advantage from it in turn, -- such

conduct would be dishonourable, inconsistent with that generosity

which should characterize sovereigns, and widely distant from those

sentiments of gratitude and friendship that are due to an old and faithful

ally. It is but too common to see great potentates, when arrived at the

summit of power, neglect those who have assisted them in attaining it.



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

contracting parties.



Treaties contain promises that are perfect and reciprocal. If one of the

allies fails in his engagements, the other may compel him to fulfil them:

-- a perfect promise confers a right to do so. But, if the latter has no

other expedient than that of arms to force his ally to the performance of

his promises, he will sometimes find it more eligible to cancel the

promises on his own side also, and to dissolve the treaty. He has

undoubtedly a right to do this, since his promises were made only on

condition that the ally should, on his part, execute every thing which he

had engaged to perform. The party, therefore, who is offended or

injured in those particulars which constitute the basis of the treaty, is at

liberty to choose the alternative of either compelling a faithless ally to

fulfil his engagements, or of declaring the treaty dissolved by his

violation of it. On such an occasion, prudence and wise policy will

point out the line of conduct to be pursued.



§ 201. The violation of the treaty does not cancel another.



But when there exist between allies two or more treaties, different from

and independent of each other, the violation of one of those treaties

does not directly disengage the injured party from the obligation he has

contracted in the others: for, the promises contained in these do not

depend on those included in the violated treaty. But the offended ally

may, on the breach of one treaty by the other party, threaten him with a

renunciation, on his own part, of all the other treaties by which they are

united, -- and may put his threats in execution if the other disregards

them. For, if any one wrests or withholds from me my right, I may, in

the state of nature, in order to oblige him to do me justice, to punish

him, or to indemnify myself, deprive him also of some of his rights, or

seize and detain them till I have obtained complete satisfaction. And, if

recourse is had to arms, in order to obtain satisfaction for the

infringement of that treaty, the offended party begins by stripping his

enemy of all the rights which had accrued to him from the different

treaties subsisting between them: and we shall see, in treating of war,

that he may do this with justice.



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

whole (126)



Some writers1 would extend what we have just said to the different

articles of a treaty which have no connection with the article that has

been violated, -- saying we ought to consider those several articles as

so many distinct treaties concluded at the same time. They maintain,

therefore, that, if either of the allies violates one article of the treaty, the

other has not immediately a right to cancel the entire treaty, but that he

may either refuse, in his turn, what he had promised with a view to the

violated article, or compel his ally to fulfil his promises if there still

remains a possibility of fulfilling them, -- if not, to repair the damage;

and that for this purpose he may threaten to renounce the entire treaty,

-- a menace which he may lawfully put in execution, if it be

disregarded by the other. Such undoubtedly is the conduct which

prudence, moderation, the love of peace, and charity would commonly

prescribe to nations. Who will deny this, and madly assert that

sovereigns are allowed to have immediate recourse to arms, or even to

break every treaty of alliance and friendship, for the least subject of

complaint? But the question here turns on the simple right, and not on

the measures which are to be pursued in order to obtain justice; and

the principle upon which those writers ground their decision, appears to

me utterly indefensible. We cannot consider the several articles of the

same treaty as so many distinct and independent treaties: for, though

we do not see any immediate connection between some of those

articles, they are all connected by this common relation, viz. that the

contracting powers have agreed to some of them in consideration of

the others, and by way of compensation. I would perhaps never have

consented to this article, if my ally had not granted me another, which in

its own nature has no relation to it. Every thing, therefore, which is

comprehended in the same treaty, is of the same force and nature as a

reciprocal promise unless where a formal exception is made to the

contrary. Grotius very properly observes that "every article of a treaty

carries with it a condition, by the non-performance of which the treaty

is wholly cancelled."2 He adds, that a clause is sometimes inserted to

the following effect, viz. "that the violation of any one of the articles

shall not cancel the whole treaty," in order that one of the parties may

not have, in every slight offence, a pretext for receding from his

engagements. This precaution is extremely prudent, and very

conformable to the care which nations ought to take of preserving

peace, and rendering their alliances durable. (127) 



§ 203. The treaty is void by the destruction of one of the

contracting powers.



In the same manner as a personal treaty expires at the death of the king

who has contracted it, a real treaty is dissolved, if one of the allied

nations is destroyed, -- that is to say, not only if the men who

compose it happen all to perish, but also if, from any cause

whatsoever, it loses its national quality or that of a political and

independent society. Thus, when a state is destroyed and the people

are dispersed, or when they are subdued by a conqueror, all their

alliances and treaties fall to the ground with the public power that had

contracted them. But it is here to be observed, that treaties or alliances

which impose a mutual obligation to perform certain acts, and whose

existence consequently depends on that of the contracting powers, are

not to be confounded with those contracts by which a perfect right is

once for all acquired, independent of any mutual performance of

subsequent acts. If, for instance, a nation has for ever ceded to a

neighbouring prince the right of fishing in a certain river, or that of

keeping a garrison in a particular fortress, that prince does not lose his

rights, even though the nation from whom he has received them

happens to be subdued, or in any other manner subjected to a foreign

dominion. His rights do not depend on the preservation of that nation:

she had alienated them; and the conqueror by whom she has been

subjugated can only take what belonged to her. In the same manner,

the debts of a nation, or those for which the sovereign has mortgaged

any of his towns or provinces, are not cancelled by conquest. The king

of Prussia, on acquiring Silesia by conquest and by the treaty of

Breslau, took upon himself the debts for which that province stood

mortgaged to some English merchants. In fact, his conquest extended

no further than the acquisition of those rights which the house of Austria

had possessed over the country; and he could only take possession of

Silesia, such as he found it at the time of the conquest, with all its rights

and all its burdens. For a conqueror to refuse to pay the debts of a

country he has subdued, would be robbing the creditors, with whom he

is not at war.



§ 204. Alliances of a state that has afterwards put herself under

the protection of another.



Since a nation or a state, of whatever kind, cannot make any treaty

contrary to those by which she is actually bound (§ 165), she cannot

put herself under the protection of another state, without reserving all

her alliances and all her existing treaties. For, the convention by which a

state places herself under the protection of another sovereign, is a

treaty (§ 175): if she does it of her own accord, she ought to do it in

such a manner, that the new treaty may involve no infringement of her

pre-existing ones. We have seen (§ 176) what rights a nation derives,

in a case of necessity, from the duty of self-preservation.



The alliances of a nation are therefore not dissolved when she puts

herself under the protection of another state, unless they be

incompatible with the conditions of that protection. The ties by which

she was bound to her former allies still subsist, and those allies still

remain bound by their engagements to her, as long as she has not put it

out of her power to fulfil their engagements to them.



When necessity obliges a people to put themselves under the

protection of a foreign power, and to promise him the assistance of

their whole force against all opponents whatsoever, without excepting

their allies, -- their former alliances do indeed subsist, so far as they

are not incompatible with the new treaty of protection. But, if the case

should happen, that a former ally enters into a war with the protector,

the protected state will be obliged to declare for the latter, to whom

she is bound by closer ties, and by a treaty which, in case of collision,

is paramount to all the others. Thus the Nepesinians, having been

obliged to submit to the Etrurians, though themselves afterwards bound

to adhere to their treaty of submission or capitulation, preferably to the

alliance which had subsisted between them and the Romans: postquam

deditionis, quam societatis, fides sanctior erat, says Livy.3



§ 205. Treaties dissolved by mutual consent.



Finally, as treaties are made by the mutual agreement of the parties,

they may also be dissolved by mutual consent, at the free will of the

contracting powers. And, even though a third party should find himself

interested in the preservation of the treaty, and should suffer by its

dissolution, -- yet, if he had no share in making such treaty, and no

direct promise had been made to him, those who have reciprocally

made promises to each other, which eventually prove advantageous to

that third party, may also reciprocally release each other from them,

without consulting him, or without his having a right to oppose them.

Two monarchs have bound themselves by a mutual promise to unite

their forces for the defence of a neighbouring city; that city derives

advantage from their assistance; but she has no right to it; and, as soon

as the two monarchs think proper mutually to dispense with their

engagements, she will be deprived of their aid, but can have no reason

to complain on the occasion, since no promise had been made to her.







(125) See in general, Grotius, b. 3, c. 2; and 1 Chitty's Com. Law. 38

to 47, 615 to 630, and ii. Index, tit. Treaties.



(126) In Sutton v. Sutton, 1 Russ. & Mylne Rep. 663, A.D. 1830, it

was held in the Court of Chancery, that, under the treaty of peace, 19

Nov. 1794, between Great Britain and [the United States of] America,

the act of 37 Geo. 3, c. 97, passed for the purpose of carrying such

treaty into execution, American citizens, who held lands in Great Britain

on the 28th Oct. 1795, and their heirs and assigns, are at all times to

be considered, so far as regards these lands, not as aliens but as

native subjects of Great Britain, and capable of inheriting and holding

such lands, notwithstanding a subsequent war between the two

countries, and this in respect of the express provision which prevents a

subsequent war from wholly determining that part of the treaty. The

Master of the Rolls there said, "It is a reasonable construction, that it

was the intention of the treaty that the operation of the treaty should be

permanent, and not depend upon the continuance of a state of peace."



1. See Wolfius, Jus Gent. § 432.



2. Grotius, de Jure Belli et Pacis, lib. ii. cap. xv. § 15.



(127) The case of Sutton v. Sutton, 1 Russ. &; Mylne, 663, is an

express decision upon such a provision even by implication.



3. Lib. vi. cap. x.







                     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

    OF SOVEREIGNS WITH PRIVATE PERSONS.



§ 206. Conventions made by sovereigns.



THE public compacts, called conventions, articles of agreement, &c.,

when they are made between sovereigns, differ from treaties only in

their object (§ 153). What we have said of the validity of treaties, of

their execution, of their dissolution, and of the obligations and rights that

flow from them, is all applicable to the various conventions which

sovereigns may conclude with each other. Treaties, conventions, and

agreements are all public engagements, in regard to which there is but

one and the same right, and the same rules. We do not here wish to

disgust the reader by unnecessary repetitions: and it were equally

unnecessary to enter into an enumeration of the various kinds of these

conventions, which are always of the same nature, and differ only in the

matter which constitutes their object.



§ 207. Those made by subordinate powers.



But there are public conventions made by subordinate powers, in virtue

either of an express mandate from the sovereign, or of the authority

with which they are invested by the terms of their commission, and

according as the nature of the affairs with which they are intrusted may

admit or require the exercise of that authority.



The appellation of inferior or subordinate powers is given to public

persons who exercise some portion of the sovereignly in the name and

under the authority of the sovereign: such are magistrates established

for the administration of justice, generals of armies, and ministers of

state.



When, by an express order from their sovereign on the particular

occasion, and with sufficient powers derived from him for the purpose

those persons form a convention, such convention is made in the name

of the sovereign himself, who contracts by the mediation and ministry of

his delegate or proxy: this is the case we have mentioned in § 156.



But public persons, by virtue of their office, or of the commission given

to them, have also themselves the power of making conventions on

public affairs, exercising on those occasions the right and authority of

the sovereign by whom they are commissioned. There are two modes

in which they acquire that power; -- it is given to them in express terms

by the sovereign: or it is naturally derived from their commission itself,

-- the nature of the affairs with which these persons are intrusted,

requiring that they should have a power to make such conventions,

especially in cases where they cannot await the orders of their

sovereign. Thus, the governor of a town, and the general who besieges

it, have a power to settle the terms of capitulation; and whatever

agreement they thus form within the terms of their commission, is

obligatory on the state or sovereign who has invested them with the

power by which they conclude it. As conventions of this nature take

place principally in war, we shall treat of them more at large in Book

III.



§ 208. Treaties concluded by a public person, without orders

from the sovereign, or without sufficient powers.



If a public person, an ambassador, or a general of an army, exceeding

the bounds of his commission, concludes a treaty or a convention

without orders from the sovereign, or without being authorised to do it

by virtue of his office, the treaty is null, as being made without sufficient

powers (§ 157); it cannot become valid without the express or tacit

ratification of the sovereign. The express ratification is a written deed

by which the sovereign approves the treaty, and engages to observe it.

The tacit ratification is implied by certain steps which the sovereign is

justly presumed to take only in pursuance of the treaty, and which he

could not be supposed to take without considering it as concluded and

agreed upon. Thus, on a treaty of peace being signed by public

ministers who have even exceeded the orders of their sovereigns, if one

of the sovereigns causes troops to pass on the footing of friends

through the territories of his reconciled enemy, he tacitly ratifies the

treaty of peace. But if, by a reservatory clause of the treaty, the

ratification of the sovereign be required, -- as such reservation is

usually understood to imply an express ratification, it is absolutely

requisite that the treaty he thus expressly ratified before it can acquire

its full force.



§ 209. The agreement called sponsio.



By the Latin term sponsio, we express an agreement relating to affairs

of state, made by a public person, who exceeds the bounds of his

commission, and acts without the orders or command of the sovereign.

The person who treats for the state in this manner without being

commissioned for the purpose, promises of course to use his

endeavours for prevailing on the state or sovereign to ratify the articles

he has agreed to: otherwise his engagement would be nugatory and

illusive. The foundation of this agreement can be no other, on either

side, than the hope of such ratification.



The Roman history furnishes us with various instances of such

agreements: -- the one that first arrests our attention is that which was

concluded at the Furcæ Caudinæ -- the most famous instance on

record, and one that has been discussed by the most celebrated

writers. The consuls Titus Veturius Calvinus and Spurius Postumius,

with the Roman army, being enclosed in the defiles of the Furcæ

Caudinæ, without hope of escaping, concluded a shameful agreement

with the Samnites -- informing them, however, that they could not

make a real public treaty (fœdus) without orders from the Roman

people, without the feciales, and the ceremonies consecrated by

custom. The Samnite general contented himself with exacting a promise

from the consuls and principal officers of the army, and obliging them to

deliver him six hundred hostages; after which, having made the Roman

troops lay down their arms, and obliged them to pass under the yoke,

he dismissed them. The senate, however, refused to accede to the

treaty, -- delivered up those who had concluded it to the Samnites,

who refused to receive them -- and then though themselves free from

all obligation, and screened from all reproach.1 Authors have

entertained very different sentiments of this conduct. Some assert, that,

if Rome did not choose to ratify the treaty, she ought to have replaced

things in the same situation they were in before the agreement, by

sending back the whole army to their encampment at the Furcæ

Caudinæ: and this the Samnites also insisted upon. I confess that I am

not entirely satisfied with the reasonings I have found on this question,

even in authors whose eminent superiority I am in other respects fully

inclined to acknowledge. Let us therefore endeavour, with the aid of

their observations, to set the affair in a new light.



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



It presents two questions -- first, what is the person bound to do, who

has made an agreement (sponsor), if the state disavows it? --

Secondly, what is the state bound to do? But, previous to the

discussion of these questions, it is necessary to observe with Grotius,2

that the state is not bound by an agreement of that nature. This is

manifest, even from the definition of the agreement called sponsio. The

state has not given orders to conclude it: neither has she in any manner

whatever conferred the necessary powers for the purpose: she has

neither expressly given them by her injunctions or by a plenipotentiary

commission, nor tacitly by a natural or necessary consequence of the

authority intrusted to him who makes the agreement (sponsori). The

general of an army has, indeed, by virtue of his commission, a power to

enter, as circumstances may require, into a private convention -- a

compact relative to himself, to his troops, or to the occurrences of war:

but he has no power to conclude a treaty of peace. He may bind

himself, and the troops under his command, on all the occasions where

his functions require that he should have the power of treating; but he

cannot bind the state beyond the extent of his commission.



§ 211. To what the promisor is bound when it is disavowed.



Let us now see to what the person promising (sponsor) is bound, when

the state disavows the agreement. We ought not here to deduce our

arguments from the rules which obtain between private individuals

under the law of nature: for, the nature of the things in question, and the

situation of the contracting parties, necessarily make a difference

between the two cases. It is certain that, between individuals, he who

purely and simply promises what depends on the will of another,

without being authorized to make such promise, is obliged, if the other

disavows the transaction, to accomplish himself what he has promised,

-- to give an equivalent -- to restore things to their former state; or,

finally, to make full compensation to the person with whom he has

treated, according to the various circumstances of the case. His

promise (sponsio) can be understood in no other light. But this is not

the case with respect to a public person, who, without authority,

engages for the performance of his sovereign. The question in such

case relates to things that infinitely surpass his power and all his

faculties -- things which he can neither execute himself nor cause to be

executed, and for which he cannot offer either an equivalent or a

compensation in any wise adequate: he is not even at liberty to give the

enemy what he has promised, without authority: finally, it is equally out

of his power to restore things entirely to their former state. The party

who treats with him cannot expect any thing of this nature. If the

promisor has deceived him by saying he was sufficiently authorized, he

has a right to punish him. But if, like the Roman consuls at the Furcæ

Caudinæ, the promisor has acted with sincerity, informing him that he

had not a power to bind the state by a treaty, -- nothing else can be

presumed, but that the other party was willing to run the risk of making

a treaty that must become void, if not ratified, -- hoping that a regard

for him who had promised, and for the hostages, would induce the

sovereign to ratify what had been thus concluded. If the event deceives

his hopes, he can only blame his own imprudence. An eager desire of

obtaining peace on advantageous conditions, and the temptation of

some present advantages, may have been his only inducements to

make so hazardous an agreement. This was judiciously observed by

the consul Postumius himself, after his return to Rome. In his speech to

the senate, as given to us by Livy, "Your generals," said he, "and those

of the enemy, were equally guilty of imprudence, -- we, in incautiously

involving ourselves in a dangerous situation -- they, in suffering a

victory to escape them, of which the nature of the ground gave them a

certainty; still distrusting their own advantages, and hasting, at any

price, to disarm men who were ever formidable while they had arms in

their hands. Why did they not keep us shut up in our camp? Why did

they not send to Rome, in order to treat for peace, on sure grounds,

with the senate and the people?



It is manifest that the Samnites contented themselves with the hope that

the engagement which the consuls and principal officer had entered

into, and the desire of saving six hundred knights, left as hostages,

would induce the Romans to ratify the agreement, considering, that, at

all events, they should still have those six hundred hostages, with the

arms and baggage of the army, and the vain, or rather, as it is proved

by its consequences, the fatal glory, of having made them pass under

the yoke.



Under what obligation then were the consuls, and all the others who

had joined with them in the promise (sponsores)? They themselves

judged that they ought to be delivered up to the Samnites. This was not

a natural consequence of the agreement (sponsionis); and from the

observations above made, it does not appear that a general in such

circumstances, having promised things which the promisee well knew

to be out of his power, is obliged, on his promise being disavowed, to

surrender his own person by way of compensation. But, as he has a

power expressly to enter into such an engagement which lies fairly

within the bounds of his commission, the custom of those times had

doubtless rendered such engagement a tacit clause of the agreement

called sponsio, since the Romans delivered up all the sponsores, all

those who had promised: this was a maxim of their fecial law.3



If the sponsor has not expressly engaged to deliver himself up, and if

established custom does not lay him under an obligation to do so, it

would seem that he is bound to nothing further by his promise than

honestly to endeavour, by every lawful means, to induce the sovereign

to ratify what he has promised: and there cannot exist a doubt in the

case, provided the treaty be at all equitable, advantageous to the state,

or supportable in consideration of the misfortune from which it has

preserved her. But, to set out with the intention of making a treaty the

instrument to ward off a deadly blow from the state, and soon after to

advise the sovereign to refuse his ratification, not because the treaty is

insupportable, but because an advantage may be taken of its having

been concluded without authority -- such a proceeding would

undoubtedly be a fraudulent and shameful abuse of the faith of treaties.

But, what must the general do, who, in order to save his army, has

been forced to conclude a treaty that is detrimental or dishonourable to

the state? Must he advise the sovereign to ratify it? He will content

himself with laying open the motives of his conduct, and the necessity

that obliged him to treat: he will show, as Postumius did, that he alone

is bound, and that he consents to be disowned and delivered up for the

public safety. If the enemy are deceived, it is through their own folly.

Was the general bound to inform them that, in all probability, his

promises would not be ratified? It would be too much to require this of

him. In such a case, it is sufficient that he does not impose on the

enemy by pretending to more extensive powers than he really

possesses, but contents himself with embracing the overtures which

they make to him, without, on his side, holding forth any delusive hopes

to decoy them into a treaty. It is the enemy's business to take all

possible precautions for their own security; if they neglect them, why

should not the general avail himself of the imprudence, as of an

advantage presented to him by the hand of fortune? "It is she," said

Postumius, "who has saved our army, after having put it in danger. The

enemy's head was turned in his prosperity; and his advantages have

been no more to him than a pleasant dream."



If the Samnites had only required of the Roman generals and army such

engagements as the nature of their situation, and their commission,

empowered them to enter into, -- if they had obliged them to

surrender themselves prisoners of war, -- or if, from their inability to

hold them all prisoners, they had dismissed them, upon their promise

not to bear arms against them for some years, in case Rome should

refuse to ratify the peace, -- the agreement would have been valid, as

being made with sufficient powers; and the whole army would have

been bound to observe it; for, it is absolutely necessary that the troops,

or their officers, should have a power of entering into a contract on

those occasions, and upon that footing. This is the case of capitulations,

of which we shall speak in treating of war.



If the promisor has made an equitable and honourable convention, on

an affair of such a nature, that, in case the convention be disallowed, he

still has it in his own power to indemnify the party with whom he has

treated. -- he is presumed to have personally pledged himself for such

indemnification; and he is bound to make it, in order to discharge his

promise, as did Fabius Maximus in the instance mentioned by Grotius,4

But there are occasions when the sovereign may forbid him to act in

that manner, or to give any thing to the enemies of the state.



§ 212. To what the sovereign is bound.



We have shown that a state cannot be bound by an agreement made

without her orders, and without her having granted any power for that

purpose. But is she absolutely free from all obligation? That is the point

which now remains for us to examine. If matters as yet continue in their

original situation, the state or the sovereign may simply disavow the

treaty, which is of course done away by such disavowal, and becomes

as perfect a nullity as if it had never existed, But the sovereign ought to

make known his intentions as soon as the treaty comes to his

knowledge: not indeed, that his silence alone can give validity to a

convention which the contracting parties have agreed not to consider as

valid without his approbation; but it would be a breach of good faith in

him to suffer a sufficient time to elapse for the other party to execute,

on his side, an agreement which he himself is determined not to ratify.



If any thing has already been done in consequence of the agreement,

-- if the party, who has treated with the sponsor, has on his side

fulfilled his engagements, either in the whole or in part, -- is the other

party, on disavowing the treaty, bound to indemnify him, or restore

things to their former situation? -- or is he allowed to reap the fruits of

the treaty, at the same time that he refuses to ratify it? -- We should

here distinguish the nature of the things that have been executed, and

that of the advantages which have thence accrued to the state. He who,

having treated with a public person not furnished with sufficient powers,

executes the agreement on his side without waiting for its ratification, is

guilty of imprudence, and commits an egregious error, into which he

has not been led by the state with which he supposes he has

contracted. If he has given up any part of his property, the other party

is not justifiable in taking advantage of his folly, and retaining

possession of what he has so given. Thus, when a state, thinking she

has concluded a peace with the enemy's general, has in consequence

delivered up one of her strong places, or given a sum of money, the

sovereign of that general is, undoubtedly, bound to restore what he has

received, if he does not choose to ratify the agreement. To act

otherwise, would be enriching himself with another's property, and

retaining that property without having any title to it.



But, if the agreement has given nothing to the state which she did not

before possess, -- if, as in that of the Furcæ Caudinæ, the advantage

simply consists in her escape from an impending danger, her

preservation from a threatened loss, -- such advantage is a boon of

fortune, which she may enjoy without scruple. Who would refuse to be

saved by the folly of his enemy? And who would think himself obliged

to indemnify that enemy for the advantage he had suffered to escape

him, when no fraud had been used to induce him to forego that

advantage? The Samnites pretended, that, if the Romans would not

ratify the treaty made by their consuls, they ought to send back the

army to the Furcæ Caudinæ, and restore every thing to its former state.

Two tribunes of the people, who had been in the number of the

sponsores, and wished to avoid being delivered up, had the assurance

to maintain the same doctrine; and some authors have declared

themselves of their opinion. What! the Samnites take advantage of

conjunctures, in order to give law to the Romans, and to wrest from

them a shameful treaty, -- they are so imprudent as to treat with the

consuls, who expressly declare themselves unauthorized to contract for

the state, -- they suffer the Roman army to escape, after having

covered them with infamy, -- and shall not the Romans take advantage

of the folly of an enemy so void of generosity? Must they either ratify a

shameful treaty, or restore to the enemy all those advantages which the

situation of the ground had given them, but which he had lost merely

through his own folly? Upon what principle can such a decision be

founded? Had Rome promised any thing to the Samnites? Had she

prevailed upon them to let her army go, previous to the ratification of

the agreement made by the consuls? If she had received any thing in

consequence of that agreement, she would have been bound to restore

it, as we have already said, because she would have possessed it

without a title, on declaring the treaty null. But she had no share in the

conduct of her enemies: she did not contribute to the egregious blunder

they had committed; and she might as justly take advantage of it, as

generals in war do of the mistakes of an unskilful opponent. Suppose a

conqueror after having concluded a treaty with ministers who have

expressly reserved the ratification to their master, should have the

imprudence to abandon all his conquests without waiting for such

ratification, -- must the other, with a foolish generosity, invite him back

to take possession of them again, in case the treaty be not ratified?



I confess, however, and freely acknowledge, that, if the enemy who

suffer an entire army to escape on the faith of an agreement concluded

with the general, who is unprovided with sufficient powers, and a

simple sponsor, -- I confess, I say, that if the enemy have behaved

generously, -- if they had not availed themselves of their advantages to

dictate shameful or too severe conditions, -- equity requires that the

estate should either ratify the agreement or conclude a new treaty on

just and reasonable conditions, abating even of her pretensions as far

as the public welfare will allow. For, we ought never to abuse the

generosity and noble confidence even of an enemy. Puffendorf5 thinks

that the treaty at the Furcæ Caudinæ contained nothing that was too

severe or insupportable. That author seems to make no great account

of the shame and ignominy with which it would have branded the whole

republic. He did not see the full extent of the Roman policy, which

would never permit them, in their greatest distresses, to accept a

shameful treaty, or even to make peace on the footing of a conquered

nation: -- a sublime policy, to which Rome was indebted for all her

greatness.



Finally, let us observe, that when the inferior power has, without

orders, and without authority, concluded an equitable and honourable

treaty, to rescue the state from an imminent danger, if the sovereign

afterwards, on seeing himself thus delivered, should refuse to ratify the

treaty, not because he thinks it a disadvantageous one, but, merely

through a wish to avoid performing those conditions which were

annexed as the price of his deliverance, he would certainly act in

opposition to all the rules of honour and equity. This would be a case in

which we might apply the maxim, summum jus, summa injuria. 



To the example we have drawn from the Roman history, let us add a

famous one taken from modem history. The Swiss, dissatisfied with

France, entered into an alliance with the emperor against Louis XII.

and made an irruption into Burgundy, in the year 1513. They laid siege

to Dijon. La Trimouille, who commanded in the place, fearing that he

should be unable to save it, treated with the Swiss, and, without waiting

for a commission from the king, concluded an agreement, by virtue of

which the king of France was to renounce his pretensions to the duchy

of Milan, and to pay the Swiss, by settled installments, the sum of six

hundred thousand crowns; whereas the Swiss, on their side, promised

nothing further than to return home to their own country, -- thus

remaining at liberty to attack France again, if they thought proper. They

received hostages, and departed. The king was very much dissatisfied

with the treaty, though it had saved Dijon, and rescued the kingdom

from an imminent and alarming danger; and he refused to ratify it."6 It is

certain that La Trimouille had exceeded the powers he derived from his

commission, especially in promising that the king should renounce the

duchy of Milan. It is probable, indeed, that his only view was to rid

himself of an enemy whom it was less difficult to overreach in

negotiation than to subdue in battle. Louis was not obliged to ratify and

execute a treaty concluded without orders and without authority; and, if

the Swiss were deceived, they could only blame their own imprudence.

But, as it manifestly appeared that La Trimouille did not behave

towards them with candour and honesty, since he had deceived them

on the subject of the hostages, by giving, in that character, men of the

meanest rank, instead of four of the most distinguished citizens, as he

had promised,7 -- the Swiss would have been justifiable in refusing to

make peace without obtaining satisfaction for that act of perfidy, either

by the surrender of him who was the author of it, or in some other

manner.



§ 213. Private contracts of the sovereign.



The promises, the conventions, all the private contracts of the

sovereign, are naturally subject to the same rules as those of private

persons. If any difficulties arise on the subject, it is equally conformable

to the rules of decorum, to that delicacy of sentiment which ought to be

particularly conspicuous in a sovereign, and to the love of justice, to

cause them to be decided by the tribunals of the state. And such indeed

is the practice of all civilized states that are governed by settled laws.



§ 214. Contracts made by him with private persons in the name

of the state.



The conventions and contracts which the sovereign, in his sovereign

character and in the name of the state, forms with private individuals of

a foreign nation, fall under the rules we have laid down with respect to

public treaties. In fact, when a sovereign enters into a contract with one

who is wholly independent of him and of the state, whether it be with a

private person, or with a nation or sovereign, this circumstance does

not produce any difference in the manner of deciding the controversies

which may arise from the contract. That private person, being a subject

of the state, is obliged to submit his pretensions to the established

courts of justice. It is added by some writers on this subject, that the

sovereign may rescind those contracts, if they prove inimical to the

public welfare. Undoubtedly he may do so, but not upon any principle

derived from the peculiar nature of such contracts: -- it must be either

upon the same principle which invalidates even a public treaty when it is

ruinous to the state and inconsistent with the public safety, -- or by

virtue of the eminent domain, which gives the sovereign a right to

dispose of the property of the citizens with a view to the common

safety. We speak here of an absolute sovereign. It is from the

constitution of each state that we are to learn who are the persons, and

what is the power, entitled to contract in the name of the state, to

exercise the supreme authority, and to pronounce on what the public

welfare requires.



§ 215. They are binding on the na-



When a lawful power contracts in the name of the state, it lays an

obligation on the nation itself, and consequently on all the future rulers

of the society. When, therefore, a prince has the power to form a

contract in the name of the state, he lays an obligation on all his

successors; and these are not less bound than himself to fulfil his

engagements.



§ 216. Debts of the sovereign and the state.



The conductor of the nation may have dealings of his own, and private

debts; and his private property alone is liable for the discharge of such

debts. But loans contracted for the service of the state, debts incurred

in the administration of public affairs, are contracts in all the strictness

of law, and obligatory on the state and the whole nation, which is

indispensably bound to discharge those debts.8 When once they have

been contracted by lawful authority, the right of the creditor is

indefeasible. Whether the money borrowed has been turned to the

advantage of the state, or squandered in foolish expenses, is no

concern of the person who has lent it: he has intrusted the nation with

his property, and the nation is bound to restore it to him again: it is so

much the worse for her, if she has committed the management of her

affairs to improper hands.



This maxim, however, has its bounds, founded even on the nature of

the thing. The sovereign has not, in general, a power to render the state

or body corporate liable for the debts he contracts, unless they be

incurred with a view to the national advantage, and in order to enable

him to provide for all occurrences. If he is absolute, it belongs to him

alone to decide, in all doubtful cases, what the welfare and safety of the

state require. But, if he should, without necessity, contract debts of

immense magnitude and capable of ruining the nation for ever, there

could not then exist any doubt in the case: the sovereign has evidently

acted without authority; and those who have lent him their money have

imprudently risked it. It cannot be presumed that a nation has ever

consented to submit to utter ruin through the caprice and foolish

prodigality of her ruler.



As the national debts can only be paid by contributions and taxes,

wherever the sovereign has not been intrusted by the nation with a

power to levy taxes and contributions, or, in short, to raise supplies by

his own authority, neither has he a power to render her liable for what

he borrows, or to involve the state in debt. Thus, the king of England,

who has the right of making peace and war, has not that of contracting

national debts, without the concurrence of parliament: because he

cannot, without their concurrence, levy any money on his people.



§ 217. Donations of the sovereign.



The case is not the same with the donations of the sovereign as with his

debts. When a sovereign has borrowed without necessity, or for an

unwise purpose, the creditor has intrusted the state with his property;

and it is just that the state should restore it to him, if at the time of the

transaction, he could entertain a reasonable presumption that it was to

the state he was lending it. But, when the sovereign gives away any of

the property of the state, -- a part of the national domain, -- a

considerable fief, -- he has no right to make such grant except with a

view to the public welfare, as a reward for services rendered to the

state, or for some other reasonable cause, in which the nation is

concerned: if he has made the donation without reason, and without a

lawful cause, he has made it without authority. His successor, or the

state, may at any time revoke such a grant; nor would the revocation

be a wrong done to the grantee, since it does not deprive him of any

thing which he could justly call his own. What we here advance holds

true of every sovereign whom the law does not expressly invest with

the free and absolute disposal of the national property: so dangerous a

power is never to be founded on presumption.



Immunities and privileges conferred by the mere liberality of the

sovereign, are a kind of donation, and may be revoked in the same

manner, if they prove detrimental to the state. But a sovereign cannot

revoke them by his bare authority, unless he be absolute: and, even in

this case, he ought to be cautious and moderate in the exertion of his

power, uniting an equal share of prudence and equity on the occasion.

Immunities granted for particular reasons, or with a view to some

return, partake of the nature of a burdensome contract, and can only

be revoked in case of abuse, or when they become incompatible with

the safety of the state. And if they be suppressed on this latter account,

an indemnification is due to those who enjoyed them.







1. Livy, lib. ix.



2. De Jure Belli et Pacis. lib. ii. cap. xv. § 16.



3. I have said in my preface, that the fecial law of the Romans was their

law of war. The college of the feciales were consulted on the causes

that might authorize the nation to engage in a war, and on the questions

to which it gave rise. They had also the care of the ceremonies on the

declaration of war, and on concluding treaties of peace. The feciales

were likewlse consulted, and their agency employed, in all public

treaties.



4. Lib. ii. chap. xv. § 16. Fabius Maximus having concluded an

agreement with the enemy which the senate disapproved sold a piece

of land for which he received two hundred thousand sesterces, in order

to make good his promise. It related to the ransom of the prisoners.

Aurel. Victor, de Viris Illustr. Plutarch's Life of Fabius Maximus.



5. Jus Nat. et Gent. lib. viii. cap. ix. § 12.



6. Guicciardini, book xii. chap. ii. -- De Watteville's History of the

Helvetic Confederacy, part ii. p. 185, &c.



7. See De Watteville's History of the Helvetic Confederacy, p. 190.



8. In 1596, Philip II. declared himself a bankrupt, under pretence that

an unfair advantage had been taken of his necessities. His creditors

loudly exclaimed against his conducl, and asserted that no confidence

could thenceforward be placed either in his word or his treaties, since

he interposed the royal authority to supersede them. He could no

longer find any one who was willing to lend him money; and his affairs

suffered so severely in consequence, that he was obliged to replace

things on their former footing, and to heal the wound which he had

given to the public faith, -- Grotius, Hist. of Disturbances in

Netherlands, book.







                     CHAP. XV. 

           OF THE FAITH OF TREATIES.



§ 218. What is sacred among nations.



THOUGH we have sufficiently established (§§ 163 and 164) the

indispensable necessity of keeping promises, and observing treaties, the

subject is of such importance, that we cannot forbear considering it

here in a more general view, as interesting, not only to contracting

parties, but likewise to all nations, and to the universal society of

mankind.



Every thing which the public safety renders inviolable is sacred in

society. Thus, the person of the sovereign is sacred, because the safety

of the state requires that he should be in perfect security, and above the

reach of violence: thus the people of Rome declared the persons of

their tribunes sacred, -- considering it as essential to their own safety

that their defenders should be screened from alt violence, and even

exempt from fear. Every thing, therefore, which the common safety of

mankind and the peace and security of human society require to be

held inviolable, is a thing that should be sacred among nations.



§ 219. Treaties are sacred between nations.



Who can doubt that treaties are in the number of those things that are

to be held sacred by nations? By treaties the most important affairs are

determined; by them the pretensions of sovereigns are regulated; on

them nations are to depend for the acknowledgment of their rights, and

the security of their dearest interests. Between bodies politic, --

between sovereigns who acknowledge no superior on earth, -- treaties

are the only means of adjusting their various pretensions, -- of

establishing fixed rules of conduct, -- of ascertaining what they are

entitled to expect, and what they have to depend on. But treaties are

no better than empty words, if nations do not consider them as

respectable engagements, -- as rules which are to be inviolably

observed by sovereigns, and held sacred throughout the whole earth. 



§ 220. The faith of treaties is sacred.



The faith of treaties, -- that firm and sincere resolution, -- that

invariable constancy in fulfilling our engagements, -- of which we make

profession in a treaty, is therefore to be held sacred and inviolable

between the nations of the earth, whose safety and repose it secures:

and, if mankind be not wilfully deficient in their duty to themselves,

infamy must ever be the portion of him who violates his faith.



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



He who violates his treaties, violates at the same time the law of

nations; for, he disregards the faith of treaties, -- that faith which the

law of nations declares sacred; and, so far as depends on him, he

renders it vain and ineffectual. Doubly guilty, he does an injury to his

ally, he does an injury to all nations, and inflicts a wound on the great

society of mankind. "On the observance and execution of treaties," said

a respectable sovereign, "depends all the security which princes and

states have with respect to each other: and no dependence could

henceforward be placed in future conventions if the existing ones were

not to be observed."1



§ 222. Right of nations against him who disre-



As all nations are interested in maintaining the faith of treaties, and

causing it to be everywhere considered as sacred and inviolable, so

likewise, they are justifiable in forming a confederacy for the purpose of

repressing him who testifies a disregard for it, -- who openly sports

with it, -- who violates and tramples it under foot. Such a man is a

public enemy who saps the foundations of the peace and common

safety of nations. But we should be careful not to extend this maxim to

the prejudice of that liberty and independence to which every nation

has a claim. When a sovereign breaks his treaties, or refuses to fulfil

them, this does not immediately imply that he considers them as empty

names, and that he disregards the faith of treaties: he may have good

reasons for thinking himself liberated from his engagements; and other

sovereigns have not a right to judge him. It is the sovereign who

violates his engagements on pretences that are evidently frivolous, or

who does not even think it worth his while to allege any pretence

whatever, to give a colourable gloss to his conduct, and cast a veil over

his want of faith, -- it is such a sovereign who deserves to be treated

as an enemy to the human race.



§ 223. The law of nations violated by the popes.



In treating of religion, in the first book of this work, we could not avoid

giving several instances of the enormous abuses which the popes

formerly made of their authority. There was one in particular, which

was equally injurious to all states, and subversive of the law of nations.

Several popes have undertaken to break the treaties of sovereigns;

they carried their daring audacity so far as to release a contracting

power from his engagements, and to absolve him from the oaths by

which he had confirmed them. Cesarini, legate of pope Eugenius the

Fourth, wishing to break the treaty which Uladislaus, king of Poland

and Hungary, had concluded with the sultan Amurath, pronounced, in

the pope's name, the king's absolution from his oaths.2 In those times

of ignorance, people thought themselves really bound by nothing but

their oaths, and they attributed to the pope the power of absolving

them from oaths of every kind. Uladislaus renewed hostilities against

the Turks: but that prince, in other respects worthy of a better fate,

paid dearly for perfidy, or rather for his superstitious weakness: he

perished, with his army, near Varna; -- a loss which was fatal to

Christendom, and brought on her by her spiritual head. The following

epitaph was written on Uladislaus:



          Romulidæ Cannas, ego Varnam clade notavi.

             Discite, mortales, non temerare fidem.

          Me nisi pontifices jussissent rumpere foedus,

           Non ferret Scythicum Pannonis ora jugum.



Pope John XII. declared null the oath which the emperor Louis of

Bavaria, and his competitor Frederic of Austria, had mutually taken

when the emperor set the latter at liberty. Philip, duke of Burgundy,

abandoning the alliance of the English, procured from the pope and the

council of Basil an absolution from his oath. And at a time when the

revival of letters, and the establishment of the Reformation should have

rendered the popes more circumspect, the legate Caraffa, in order to

induce Henry II. of France to a renewal of hostilities, had the audacity

to absolve him, in 1556, from the oath he had made to observe the

truce of Vaucelles.3 The famous peace of Westphalia displeasing the

pope on many accounts, he did not confine himself to protesting against

the articles of a treaty in which all Europe was interested: he published

a bull, in which, from his own certain knowledge, and full

ecclesiastical power, he declared several articles of the treaty null,

vain, invalid, iniquitous, unjust, condemned, reprobated, frivolous,

void of force and effect; and that nobody was bound to observe

them or any of them, though they were confirmed by oath. -- Nor

was this all: -- his holiness, assuming the tone of an absolute master,

proceeds thus -- And, nevertheless, for the greater precaution, and

as much as need be, from the same motions, knowledge,

deliberations, and plenitude of power, we condemn, reprobate,

break, annul, and deprive of ail force and effect, the said articles,

and all the other things prejudicial to the above, &c.4 Who does

not see that these daring acts of the popes, which were formerly very

frequent, were violations of the law of nations, and directly tended to

destroy all the bands that could unite mankind, and to sap the

foundations of their tranquillity, or to render the pope sole arbiter of

their affairs?



§ 224. This abuse authorized by princes.



But who can restrain his indignation at seeing this strange abuse

authorized by princes themselves? In the treaty concluded at

Vincennes, between Charles V. king of France, and Robert Stuart,

king of Scotland, in 1371, it was agreed that the pope should absolve

the Scots from all the oaths they had taken in swearing to a truce

with the English, and that he should promise never to absolve the

French or Scots from the oaths they were about to make in

swearing to the new treaty.5



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

obligation. (128)



The custom generally received in former times, of swearing to the

observance of treaties, had furnished the popes with a pretext for

claiming the power of breaking them, by absolving the contracting

parties from their oaths. But, in the present day, even children know

that an oath does not constitute the obligation to keep a promise or a

treaty: it only gives an additional strength to that obligation by calling

God to bear witness. A man of sense, a man of honour, does not think



himself less bound by his word alone, by his faith once pledged, than if

he had added the sanction of an oath. Cicero would not have us to

make much difference between a perjurer and a liar. "The habit of lying

(says that great man) paves the way to perjury. Whoever can be

prevailed on to utter a falsehood, may be easily won over to commit

perjury: for the man who has once deviated from the line of truth,

generally feels as little scruple in consenting to a perjury as to a lie. For,

what influence can the invocation of the gods have on the mind of him

who is deaf to the voice of conscience? The same punishment,

therefore, which heaven has ordained for the perjurer, awaits also the

liar: for it is not on account of the formula of words in which the oath is

couched, but of the perfidy and villainy displayed by the perjurer in

plotting harm against his neighbour, that the anger and indignation of the

gods is roused."6



The oath does not then produce a new obligation: it only gives

additional force to the obligation imposed by the treaty, and in every

thing shares the same fate with it. Where the treaty is of its own nature

valid and obligatory, the oath (in itself a supererogatory obligation) is so

too: but, where the treaty is void, the oath is void likewise.



§ 226. It does not change the nature of obligations.



The oath is a personal act: it can therefore only regard the person of

him who swears, whether he swears himself, or deputes another to

swear in his name. However, as this act does not produce a new

obligation, it makes no change in the nature of a treaty. Thus, an

alliance confirmed by oath is so confirmed only with respect to him

who has contracted it: but if it be a real alliance, it survives him, and

passes to his successors as an alliance not confirmed by oath.



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



For the same reason, since the oath can impose no other obligation

than that which results from the treaty itself, it gives no pre-eminence to

one treaty, to the prejudice of those that are not sworn to. And as, in

case of two treaties clashing with each other, the more ancient ally is to

be preferred (§ 167); the same rule should be observed, even though

the more recent treaty has been confirmed by an oath. In the same

manner, since it is not allowable to engage in treaties inconsistent with

existing ones (§ 165), the circumstance of an oath will not justify such

treaties, nor give them sufficient validity to supersede those which are

incompatible with them: -- if it had such an effect, this would be a

convenient mode for princes to rid themselves of their engagements.



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



Thus also an oath cannot give validity to a treaty that is of its own

nature invalid, -- justify a treaty which is in itself unjust, -- or impose

any obligation to fulfil a treaty, however lawfully concluded, when an

occasion occurs in which the observance of it would be unlawful, -- as

for instance, if the ally to whom succours have been promised

undertakes a war that is manifestly unjust. In short, every treaty made

for a dishonourable purpose (§ 161), every treaty prejudicial to the

state (§ 160), or contrary to her fundamental laws (Book I. § 265),

being in its own nature void, -- the oath that may have been added to

such a treaty is void likewise, and falls to the ground together with the

covenant which it was intended to confirm.



§ 229. Asseverations.



The asseverations used in entering into engagements are forms of

expression intended to give the greater force to promises. Thus, kings

promise in the most sacred manner, with good faith, solemnly,

irrevocably, and engage their royal word, &c. A man of honour

thinks himself sufficiently bound by his word alone: yet these

asseverations are not useless, inasmuch as they tend to prove that the

contracting parties form their engagements deliberately, and with a

knowledge of what they are about. Hence, consequently the violation

of such engagements become the more disgraceful. With mankind,

whose faith is so uncertain, every circumstance is to be turned to

advantage: and since the sense of shame operates more powerfully on

their minds that the sentiment of duty, it would be imprudent to neglect

this method.



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

religion.



After what we have said above (§ 162), it were unnecessary to

undertake in this place to prove that the faith of treaties has no relation

to the difference of religion, and cannot in any manner depend upon it.

The monstrous maxim, that no faith is to be kept with heretics, might

formerly raise its head amidst the madness of party and the fury of

superstition: but it is at present detested.



§ 231. Precautions to be taken in wording treaties.



If the security of him who stipulates for anything in his own favour

prompts him to require precision, fulness, and the greatest clearness in

the expressions, -- good faith demands, on the other hand, that each

party should express his promises clearly, and without the least

ambiguity. The faith of treaties is basely prostituted by studying to

couch them in vague or equivocal terms, to introduce ambiguous

expressions, to reserve subjects of dispute, to overreach those with

whom we treat, and outdo them in cunning and duplicity. Let the man

who excels in these arts boast of his happy talents, and esteem himself

a keen negotiator, but reason and the sacred law of nature will class

him as far beneath a vulgar cheat as the majesty of kings is exalted

above private persons. True diplomatic skill consists in guarding against

imposition, not in practising it.



§ 232. Subterfuges in treaties.



Subterfuges in a treaty are not less contrary to good faith. His catholic

Majesty, Ferdinand, having concluded a treaty with the archduke his

son-in-law, thought he could evade it by privately protesting against the

treaty: a puerile finesse! which, without giving any right to that prince,

only exposed his weakness and duplicity.



§ 233. An evidently false interpretation inconsistent with the

faith of treaties.



The rules that establish a lawful interpretation of treaties are sufficiently

important to be made the subject of a distinct chapter. For the present,

let us simply observe that an evidently false interpretation is the grossest

imaginable violation of the faith of treaties. He that resorts to such an

expedient either impudently sports with that sacred faith, or sufficiently

evinces his inward conviction of the degree of moral turpitude annexed

to the violation of it: he wishes to act a dishonest part, and yet preserve

the character of an honest man: he is a puritanical impostor, who

aggravates his crime by the addition of a detestable hypocrisy. Grotius

quotes several instances of evidently false interpretations put upon

treaties:7 The Plateans, having promised the Thebans to restore their

prisoners, restored them after they had put them to death. Pericles,

having promised to spare the lives of such of the enemy as laid down

their arms,8 ordered all those to be killed who had iron clasps to their

cloaks. A Roman general,9 having agreed with Antiochus to restore

him half of his fleet, caused each of the ships to be sawed in two. All

these interpretations are as fraudulent as that of Rhadamistus, who,

according to Tacitus's account,10 having sworn to Mithridates that he

would not employ either poison or the steel against him, caused him to

be smothered under a heap of clothes.



§ 234. Faith tacitly pledged.



Our faith may be tacitly pledged, as well as expressly: it is sufficient that

it be pledged, in order to become obligatory; the manner can make no

difference in the case. The tacit pleading of faith is founded on a tacit

consent; and a tacit consent is that which, is, by fair deduction, inferred

from our actions. Thus, as Grotius observes,11 whatever is included in

the nature of certain acts which are agreed upon, it is tacitly

comprehended in the agreement: or, in other words, every thing which

is indispensably necessary to give effect to the articles agreed on, is

tacitly granted. If, for instance, a promise is made to a hostile army who

have advanced far into the country, that they shall be allowed to return

home in safety, it is manifest that they cannot be refused provisions; for

they cannot return without them. In the same manner, in demanding or

accepting an interview, full security is tacitly promised, Livy justly says,

that the Gallo-Greeks violated the law of nations in attacking the consul

Manlius at the time when he was repairing to the place of interview to

which they had invited him.12 The emperor Valerian, having been

defeated by Sapor, King of Persia, sent to him to sue for peace. Sapor

declared that he wished to treat with the emperor in person; and

Valerian, having consented to the interview without any suspicion of

fraud, was carried off by the perfidious enemy, who kept him a

prisoner till his death, and treated him with the most brutal cruelty.13



Grotius, in treating of tacit conventions, speaks of those in which the

parties pledge their faith by mute signs.14 But we ought not to

confound these two kinds of tacit conventions: for that consent which is

sufficiently notified by a sign, is an express consent, as clearly as if it

had been signified by the voice. Words themselves are but signs

established by custom: and there are mute signs which established

custom renders as clear as express as words. Thus, at the present day,

by displaying a white flag, a parley is demanded, as expressly as it

could be done by the use of speech. Security is tacitly promised to the

enemy who advances upon this invitation. 







1. Resolution of the States-general, of the 15th of March, 1726, in

answer to the Memorial of the Marquis de St. Philip, Ambassador of

Spain.



2. History of Poland, by the Chevalier de Solignac, vol. iv. 112. He

quotes Dlugoss, Neugobauer, Sarnicki, Herburt, De Fulstin. &c.



3. On these facts, see the French and German historians. -- "Thus war

was determined on in favour of the pope: and after cardinal Caraffia,

by virtue of the powers vested in him by his holiness, had absolved the

king from the oaths he had taken in ratification of the truce, he even

permitted him to attack the emperor and his son without a previous

declaration of hostilities." -- De Thou, lib. svii.



4. History of the Treaty of Westphalia, by Father Bougeant, in 12 mo.

vi. p. 413.



5. Choisy's History of Charles V. p. 282.



(128) Paley, in his Moral Philosophy, agrees in this view of moral

obligation. It is the modern policy to restrain prospective oaths, or

rather promises, and all extra-judicial oaths not essential for eliciting

evidence upon past events. -- C.



6. At quid interest iter perjurum el mendacem? Qui mentiri solet,

pejerare consuevit. Quem ego, ut menitiatur, inducere possum, ut

pejeret, exorare facile potero: nam qui semel a veritate deflexit, hic non

majori religione ad perjurium quam ad mendacium perduci consuevit.

Quis enim deprecatione decorum, non conscientiæ fide commoveutri?

Propterea, quæ pœ na ab diis immortalibus perjaro, hæc eadem

mendaci constituta est. Non enim ex pactione verborum quibus

jusjurandum comprehenditur, sed ex perfidia et malitia per quam

insidiæ tenduntur alicui, dii immortales hominibus irasci et succensere

consuerunt. Cicer. Orat. pro Q. Roscio, comœ do.



7. De Jure Belli et Pads, lib. ii. cap. xvi. § 5.



8. Literally, "laid down their iron or steel:" hence the perfidious quibble

on the word iron, which cannot be so well rendered in English.



9. Q. Fabvius Labeo, according to Valerius Maximus; Livy makes no

mention of the transaction.



10. Annal. lib. xii.



11. Lib. iii. cap. xxiv. § 1.



12. Livy, lib. xxxviii. cap. xxv.



13. The Life of Valerian in Crevier's History of the Emperors.



14. Llb. iii. cap. xxiv. § 5.







                     CHAP. XVI. 

  OF SECURITlES GIVEN FOR THE OBSERVANCE

                    OF TREATIES



§ 235. Guaranty.



CONVINCED by unhappy experience, that the faith of treaties, sacred

and inviolable as it ought to be, does not always afford a sufficient

assurance that they shall be punctually observed, -- mankind have

sought for securities against perfidy, -- for methods, whose efficacy

should not depend on the good faith of the contracting parties. A

guaranty is one of these means. When those who make a treaty of

peace, or any other treaty, are not perfectly easy with respect to its

observance, they require the guaranty of a powerful sovereign. The

guarantee promises to maintain the conditions of the treaty, and to

cause it to be observed. As he may find himself obliged to make use of

force against the party who attempts to violate his promises, it is an

engagement that no sovereign ought to enter into lightly, and without

good reason. Princes indeed seldom enter into it unless when they have

an indirect interest in the observance of the treaty, or are induced by

particular relations of friendship. The guaranty may be promised equally

to all the contracting parties, to some of them, or even to one alone; but

it is commonly promised to all in general. It may also happen, when

several sovereigns enter into a common alliance, that they all

reciprocally pledge themselves to each other as guarantees for its

observance. The guaranty is a kind of treaty, by which assistance and

sucours are promised to any one, in case he has need of them, in order

to compel a faithless ally to fulfil his engagements.



§ 236. It gives the guarantee no right to interfere unasked in the

execution of a treaty.



Guaranty being given in favour of the contracting powers, or one of

them, it does not authorize the guarantee to interfere in the execution of

the treaty, or to enforce the observance of it, unasked, and of his own

accord. If, by mutual consent, the parties think proper to deviate from

the tenor of the treaty, to alter some of the articles, or to cancel it

altogether, -- or if one party be willing to favour the other by a

relaxation of any claim, -- they have a right to do this and the

guarantee cannot oppose it. Simply bound by his promise to support

the party who should have reason to complain of the infraction of the

treaty, he has acquired no rights for himself. The treaty was not made

for him; for, had that been the case, he would have been concerned,

not merely as a guarantee, but as a principal in the contract. This

observation is of great importance: for care should be taken, lest, under

colour of being a guarantee, a powerful sovereign should render himself

the arbiter of the affairs of his neighbours, and pretend to give them

law.



But it is true, that, if the parties make any change in the articles of the

treaty without the consent and concurrence of the guarantee, the latter

is no longer bound to adhere to the guaranty; for the treaty thus

changed is no longer that which he guarantied.(129)



§ 237. Nature of the obligation it imposes.



As no nation is obliged to do any thing for another nation, which that

other is herself capable of doing, it naturally follows that the guarantee

is not bound to give his assistance except where the party to whom he

has granted his guaranty is of himself unable to obtain justice.



If there arises any dispute between the contracting parties respecting

the sense of any article of the treaty, the guarantee is not immediately

obliged to assist him in favour of whom he has given his guaranty. As

he cannot engage to support injustice, he is to examine, and to scarch

for the true sense of the treaty, to weigh the pretensions of him who

claims his guaranty; and, if he finds them ill founded, he may refuse to

support them, without failing in his engagements.



§ 238. The guaranty cannot impair the rights of a third party.



It is no less evident that the guaranty cannot impair the rights of any one

who is not a party to the treaty. If, therefore, it happens that the

guarantied treaty proves derogatory to the rights of those who are not

concerned in it, -- the treaty being unjust in this point, the guarantee is

in no wise bound to procure the performance of it; for, as we have

shown above, he can never have incurred an obligation to support

injustice. This was the reason alleged by France, when, notwithstanding

her having guarantied the famous pragmatic sanction of Charles VI.,

she declared for the house of Bavaria, in opposition to the heiress of

that emperor. This reason is incontestably a good one, in the general

view of it: and the only question to be decided at that time was,

whether the court of France made a just application of it.



            Non nostrum vos tantas componere lites.



I shall observe on this occasion, that, according to common usage, the

term guaranty is often taken in a sense somewhat different from that

we have given to it. For instance, most of the powers of Europe

guarantied the act by which Charles VI, had regulated the succession

to his dominions; -- sovereigns sometimes reciprocally guaranty their

respective states. But we should rather denominate those transactions

treaties of alliance, for the purpose, in the former case, of maintaining

that rule of succession. -- and, in the latter, of supporting the

possession of those states.



§ 239. Duration of the guaranty.



The guaranty naturally subsists as long as the treaty that is the object of

it; and, in case of doubt, this ought always to be presumed, since it is

required, and given, for the security of the treaty. But there is no reason

which can naturally prevent its limitation to a certain period, -- to the

lives of the contracting powers, to that of the guarantee, &c. In a word,

whatever we have said of treaties in general is equally applicable to a

treaty of guaranty.



§ 240. Treaties with surety.



When there is question of things which another may do or give as well

as he who promises, as, for instance, the payment of a sum of money, it

is safer to demand a security than a guaranty: for the surety is bound

to make good the promise in default of the principal, -- whereas the

guarantee is only obliged to use his best endeavours to obtain a

performance of the promise from him who has made it.



§ 241. Pawns, securities, and mortgages.



A nation may put some of her possessions into the hands of another,

for the security of her promises, debts, or engagements. If she thus

deposits movable property, she gives pledges. Poland formerly

pledged a crown and other jewels to the sovereigns of Prussia. But

sometimes towns and provinces are given in pawn. If they are only

pledged by a deed which assigns them as security for a debt, they

serve as a mortgage: if they are actually put into the hands of the

creditor, or of him with whom the affair has been transacted, he holds

them as pledges: and, if the revenues are ceded to him as an equivalent

for the interest of the debt, the transaction is called a compact of

antichresis.



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



The right which the possession of a town or province confers upon him

who holds it in pledge, extends no further than to secure the payment of

what is due to him, or the performance of the promise that has been

made to him. He may therefore retain the town or the province in his

hands, till he is satisfied: but he has no right to make any change in it;

for that town, or that country, does not belong to him as proprietor. He

cannot even interfere in the government of it, beyond what is required

for his own security, unless the empire, or the exercise of sovereignty,

has been expressly made over to him. This last point is not naturally to

be presumed, since it is sufficient for the security of the mortgagee, that

the country is put into his hands and under his power. Further, he is

obliged, like every other person who has received a pledge, to

preserve the country he holds as a security, and, as far as in his power,

to prevent its suffering any damage or dilapidation: he is responsible for

it; and if the country is ruined through his fault, he is bound to indemnify

the state that intrusted himwith the possession of it. If the sovereignty is

deposited in his hands together with the country itself, he ought to

govern it according to its constitution and precisely in the same manner

as the sovereign of the country was obliged to govern it; for the latter

could only pledge his lawful right.



§ 243. How she is obliged to restore it.



As soon as the debt is paid, or the treaty is fulfilled, the term of the

security expires, and he who holds a town or a province by this title is

bound to restore it faithfully, in the same state in which he received it,

so far as this depends on him.



But to those who have no law but their avarice, or their ambition --

who, like Achilles, place all their right in the point of their sword1 -- a

tempting allurement now presents itself: they have recourse to a

thousand quibbles, a thousand pretences, to retain an important place,

or a country which is conveniently situated for their purposes. The

subject is too odious for us to allege examples: they are well enough

known, and sufficiently numeorus to convince every sensible nation,

that it is very imprudent to make over such securities.



§ 244. How she may appropriate it to herself.



But if the debt be not paid at the appointed time, or if the treaty be not

fulfilled, what has been given in security may be retained and

appropriated, or the mortgage seized, at least until the debt is

discharged, or a just compensation made.



The house of Savoy had mortgaged the country of Faud to the cantons

of Bern and Fribourg; and those two cantons, finding that no payments

were made, had recourse to arms, and took possession of the country.

The duke of Savoy, instead of immediately satisfying their just

demands, opposed force to force, and gave them still further grounds

of complaint: wherefore the cantons, finally successful in the contest,

have since retained possession of that fine country, as well for the

payment of the debt, as to defray the expenses of the war, and to

obtain a just indemnification.



§ 245. Hostages.



Finally, there is, in the way of security, another precaution, of very

ancient institution, and much used among nations -- which is, to require

hostages. These are persons of consequence, delivered up by the

promising party, to him with whom he enters into an engagement, to be

detained by the latter until the performance of the promises which are

made to him. In this case, as well as in those above mentioned, the

transaction is a pignorary contract, in which free men are delivered up,

instead of towns, countries, or jewels. With respect to this contract,

therefore, we may confine ourselves to those particular observations

which the difference of the things pledged renders necessary.



§ 246. What right we have over hostages.



The sovereign who receives hostages has no other right over them than

that of securing their persons, in order to detain them till the entire

accomplishment of the promises of which they are the pledge. He may

therefore take precautions to prevent their escaping from him: but those

precautions should be moderated by humanity towards men whom he

has no right to use ill; and they ought not to be extended beyond what

prudence requires.



It is pleasing to behold the European nations in the present age content

themselves with the bare parol of their hostages. The English noblemen

who were sent to France in that character, in pursuance of the treaty of

Aix-la-Chapelle, in 1748, to stay till the restitution of Cape Breton,

were solely bound by their word of honour, and lived at court, and at

Paris, rather as ministers of their nation than as hostages.



§ 247. Their liberty alone is pledged.



The liberty of the hostages is the only thing pledged: and if he who has

given them breaks his promise, they may be detained in captivity.

Formerly they were in such cases put to death; -- an inhuman cruelly,

founded on an error. It was imagined that the sovereign might arbitrarily

dispose of the lives of his subjects, or that every man was the master of

his own life, and had a right to stake it as a pledge when he delivered

himself up as hostage. 



§ 248. When they are to be sent back.



As soon as the engagements are fulfilled, the cause for which the

hostages were delivered no longer subsists: they then immediately

become free, and ought to be restored without delay. They ought also

to be restored, if the reason for which they were demanded does not

take place: to detain them then would be to abuse the sacred faith upon

which they are delivered. The perfidious Christiern II., king of

Denmark, being delayed by contrary winds before Stockholm, and,

together with his whole fleet, ready to perish with famine, made

proposals of peace: whereupon, the adminstrator, Steno, imprudently

trusting to his promises, furnished the Danes with provisions, and even

gave Gustavus and six other noblemen as hostages for the safety of the

king, who pretended to have a desire to come on shore: but, with the

first fair wind, Christiern weighed anchor, and carried off the hostages;

thus repaying the generosity of his enemy by an infamous act of

treachery.2



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



Hostages being delivered on the faith of treaties, and he who receives

them promising to restore them as soon as the promise of which they

are the surety shall be fulfilled, -- such engagements ought to be

literally accomplished: and the hostages should be really and faithfully

restored to their former condition, as soon as the accomplishment of

the promise has disengaged them. It is, therefore, not allowable to

detain them for any other cause; and I am astonished to find that some

learned writers teach a contrary doctrine.3 They ground their opinion

upon the principle which authorizes a sovereign to seize and detain the

subjects of another state in order to compel their rulers to do him

justice. The principle is true; but the application is not just. These

authors seemed to have overlooked the circumstance, that, were it not

for the faith of the treaty by virtue of which the hostage has been

delivered, he would not be in the power of that sovereign, nor exposed

to be so easily seized; and that the faith of such a treaty does not allow

the sovereign to make any other use of his hostage than that for which

he was intended, or take advantage of his detention beyond what has

been expressly stipulated. The hostage is delivered for the security of a

promise, and for that alone. As soon, therefore, as the promise is

fulfilled, the hostage, as we have just observed, ought to be restored to

his former condition. To tell him that he is released as a hostage, but

detained as a pledge for the security of any other pretension, would be

taking advantage of his situation as a hostage, in evident violation of the

spirit and even the letter of the convention, according to which, as soon

as the promise is accomplished, the hostage is to be restored to himself

and his country, and reinstated in his pristine rank, as if he had never

been a hostage. Without a rigid adherence to this principle, it would no

longer be safe to give hostages, since princes might, on every occasion,

easily devise some pretext for detaining them. Albert the Wise, duke of

Austria, making war against the city of Zurich, in the year 1353, the

two parties referred the decision of their disputes to arbitrators, and

Zurich gave hostages. The arbitrators passed an unjust sentence,

dictated by partiality. Zurich, nevertheless, after having made a

well-grounded complaint on the subject, determined to submit to their

decision. But the duke formed new pretensions, and detained the

hostages,4 contrary to the faith of the compromise, and in evident

contempt of the law of nations.



§ 250. They may be detained for their own actions.



But a hostage may be detained for his own actions, for crimes

committed, or debts contracted in the country while he is in hostage

there. This is no violation of the faith of the treaty. In order to be sure

of recovering his liberty, according to the terms of the treaty, the

hostage must not claim a right to commit, with impunity, any outrages

against the nation by which he is kept; and when he is about to depart,

it is just that he should pay his debts. 



§ 251. Of the support of hostages.



It is the party who gives the hostages that is to provide for their

support; for, it is by his order, and for his service, that they are in

hostage. He who receives them for his own security is not bound to

defray the expense of their subsistence, but simply that of their custody,

if he thinks proper to set a guard over them.



§ 252. A subject cannot refuse to be a hostage.



The sovereign may dispose of his subjects for the service of the state;

he may, therefore, give them also as hostages; and the person who is

nominated for that purpose is bound to obey, as he is, on every other

occasion, when commanded for the service of his country. But, as the

expenses ought to be borne equally by the citizens, the hostage is

entitled to be defrayed and indemnified at the public charge.



It is, evidently, a subject alone who can be given as a hostage against

his will. With a vassal, the case is otherwise. What he owes to the

sovereign, is determined by the conditions of his fief; and he is bound to

nothing more. Accordingly, it is a decided point that a vassal cannot be

constrained to go as a hostage, unless he be at the same time a subject.



Whoever has a power to make treaties or conventions, may give and

receive hostages. For this reason, not only the sovereign, but also the

subordinate authorities, have a right to give hostages in the agreements

they make, according to the powers annexed to their office, and the

extent of their commission. The governor of a town, and the besieging

general, give and receive hostages for the security of the capitulation:

whoever is under their command is bound to obey, if he is nominated

for that purpose.



§ 253. Rank of the hostages.



Hostages ought naturally to be persons of consequence, since they are

required as a security. Persons of mean condition would furnish but a

feeble security, unless they were given in great numbers. Care is

commonly taken to settle the rank of the hostages that are to be

delivered; and the violation of a compact in this particular is a flagrant

dereliction of good faith and honour. It was a shameful act of perfidy in

La Trimouille to give the Swiss only hostages from the dregs of the

people, instead of four of the principal citizens of Dijon, as had been

stipulated in the famous treaty we mentioned above (§ 212).

Sometimes the principal persons of the state, and even princes, are

given in hostage, Francis I. gave his own sons as security for the treaty

of Madrid.



§ 254. They ought not to make their escape.



The sovereign who gives hostages ought to act ingenuously in the affair,

-- giving them in reality as pledges of his word, and, consequently,

with the intention that they should be kept till the entire accomplishment

of his promise. He cannot, therefore, approve of their making their

escape: and, if they take such a step, so far from harbouring them, he is

bound to send them back. The hostage, on his side, conformably to the

presumed intention of his sovereign, ought faithfully to remain with him

to whom he is delivered, without endeavouring to escape. Clœlia made

her escape from the hands of Porsenna, to whom she had been

delivered as a hostage; but the Romans sent her back, that they might

not incur the guilt of violating the treaty.5



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



If the hostage happens to die, he who has given him is not obliged to

replace him, unless this was made a part of the agreement. The hostage

was a security required of him: that security is lost without any fault on

his side; and there exists no reason why he should be obliged to give

another.



§ 256. Of him who takes the place of a hostage.



If any one substitutes himself for a time in the place of a hostage, and

the hostage happens in the interim to die a natural death, the substitute

is free: for, in this case, things are to be replaced in the same situation in

which they would have been if the hostage had not been permitted to

absent himself and substitute another in his stead: and, for the same

reason, the hostage is not free by the death of him who has taken his

place only for a time. It would be quite the contrary, if the hostage had

been exchanged for another: the former would be absolutely free from

all engagement; and the person who had taken his place would alone

be bound.



§ 257. A hostage succeeding to the crown.



If a prince who has been given in hostage succeeds to the crown, he

ought to be released on the delivery of another sufficient hostage, or a

number of others, who shall together constitute an aggregate security

equivalent to that which he himself afforded when he was originally

given. This is evident from the treaty itself, which did not import that the

king should be a hostage. The detention of the king's person by a

foreign power is a thing of too interesting a nature to admit a

presumption that the state had intended to expose herself to the

consequences of such an event. Good faith ought to preside in all

conventions; and the manifest or justly presumed intention of the

contracting parties ought to be adhered to. If Francis I. had died after

having given his sons as hostages, certainly the dauphin should have

been released: for, he had been delivered only with a view of restoring

the king to his kingdom; and, if the emperor had detained him, that

view would have been frustrated, since the king of France would still

have been a captive. It is evident, that, in this reasoning, I proceed on

the supposition that no violation of the treaty has taken place on the

part of the state which has given a prince in hostage. In case that state

had broken its promise, advantage might reasonably be taken of an

event which rendered the hostage still more valuable, and his release

the more necessary.



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



The liability of a hostage, as that of a city or a country, expires with the

treaty which it was intended to secure (§§ 243, 248): and

consequently, if the treaty is personal, the hostage is free at the moment

when one of the contracting powers happens to die.



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

hostages. 



The sovereign who breaks his word after having given hostages, does

an injury, not only to the other contracting power, but also to the

hostages themselves. For, though subjects are indeed bound to obey

their sovereign who gives them in hostage, that sovereign has not a right

wantonly to sacrifice their liberty, and expose their lives to danger

without just reasons. Delivered up as a security for their sovereign's

promise, not for the purpose of suffering any harm, -- if he entails

misfortune on them by violating his faith, he covers himself with double

infamy. Pawns and mortgages serve as securities for what is due; and

their acquisition indemnifies the part to whom the other fails in his

engagements. Hostages are rather pledges of the faith of him who gives

them; and it is supposed that he would abhor the idea of sacrificing

innocent persons. But, if particular conjunctures oblige a sovereign to

abandon the hostages, -- if, for example, the party who has received

them violates his engagements in the first instance, and, in consequence

of his violation, the treaty can no longer be accomplished without

exposing the state to danger, -- no measure should be left untried for

the delivery of those unfortunate hostages; and the state cannot refuse

to compensate them for their sufferings, and to make them amends,

either in their own persons, or in those of their relatives.



§ 260. The fate of the hostage when he who has given him fails

in his 



At the moment when the sovereign who has given the hostage has

violated his faith, the latter ceases to retain the character of a hostage,

and becomes a prisoner to the party who had received him, and who

has now a right to detain him in perpetual captivity. But it becomes a

generous prince to refrain from an exertion of his rights at the expense

of an innocent individual. And as the hostage is no longer bound by any

tie to his own sovereign who has perfidiously abandoned him, -- if he

chooses to transfer his allegiance to the prince who is now the arbiter

of his fate, the latter may acquire a useful subject, instead of a wretched

prisoner, the troublesome object of his commiseration. Or he may

liberate and dismiss him, on settling with him the conditions.



§ 261. Of the right founded on custom.



We have already observed that the life of a hostage cannot be lawfully

taken away on account of the perfidy of the party who has delivered

him. The custom of nations, the most constant practice, cannot justify

such an instance of barbarous cruelty, repugnant to the law of nature.

Even at a time when that dreadful custom was but too much authorized,

the great Scipio publicly declared that he would not suffer his

vengeance to fall on innocent hostages, but on the persons themselves

who had incurred the guilt of perfidy, and that he was incapable of

punishing any but armed enemies.6 The emperor Julian made the same

declaration.7 All that such a custom can produce, is impunity among

the nations who practice it. Whoever is guilty of it cannot complain that

another is so too: but every nation may and ought to declare that she

considers the action as a barbarity injurious to human nature. 







(129) This principle of the law of nations in this respect precisely

applies to guaranties given by private individuals. 5 Barn. & Cres. 269;

2 Dowl 5 Bing. 485. -- C.



1. Jura negat sibi nata, nihil non arrogat armis. -- Horat



2. History of the Revolutions of Sweden. 



3. Grotius. lib. iii. cap. xx. § 55. -- Wolfius, Jus Gent. § 503.



4. Tschudi. vol. i. p 421.



5. Et Romani pignus pacis ex fœdere resituerunt. Tit. Liv. lib. ii. cap.

xiii.



6. Tit. Liv. lib. xxviii. cap. xxxiv.



7. See Grotius, lib. iii. cap. xi. § 18, not. 2.







                    CHAP. XVII. 

   OF THE INTERPRETATION OF TREATIES.(130)



§ 262. Necessity of establishing rules of interpretation.



IF the ideas of men were always distinct and perfectly determinate, --

if, for the expression of those ideas, they had none but proper words,

no terms but such as were clear, precise, and susceptible only of one

sense, -- there would never be any difficulty in discovering their

meaning in the words by which they intended to express it: nothing

more would be necessary than to understand the language. But, even

on this supposition, the art of interpretation would still not be useless. In

concessions, conventions, and treaties, in all contracts, as well as in the

laws, it is impossible to foresee and point out all the particular cases

that may arise; we decree, we ordain, we agree upon certain things,

and express them in general terms; and, though all the expressions of a

treaty should be perfectly clear, plain, and determinate, the true

interpretation would still consist in making, in all the particular cases

that present themselves, a just application of what has been decreed in

a general manner. But thus is not all: -- conjectures vary, and produce

new kinds of cases, that cannot be brought within the terms of the

treaty or the law, except by inferences drawn from the general views of

the contracting parties, or of the legislature. Between different clauses,

there will be found contradictions and inconsistencies, real or apparent;

and the question is, to reconcile such clauses, and point out the path to

be pursued. But the case is much worse if we consider that fraud seeks

to take advantage even of the imperfection of language, and that men

designedly throw obscurity and ambiguity into their treaties, in order to

be provided with a pretence for eluding them upon occasion. It is

therefore necessary to establish rules founded on reason, and

authorized by the law of nature, capable of diffusing light over what is

obscure, of determining what is uncertain, and of frustrating the views

of him who acts with duplicity in forming the compact. Let us begin

with those that tend particularly to this last end, -- with those maxims

of justice and equity which are calculated to repress fraud, and to

prevent the effect of its artifices.



§ 263. 1st general maxim: it is not allowable to interpret what

has no need of interpretation.(131)



The first general maxim of interpretation is, that It is not allowable to

interpret what has no need of interpretation. When a deed is

worded in clear and precise terms, -- when its meaning is evident, and

leads to no absurd conclusion, -- there can be no reason for refusing

to admit the meaning which such deed naturally presents. To go

elsewhere in search of conjectures, in order to restrict or extend it, is

but an attempt to elude it. If this dangerous method be once admitted,

there will be no deed which it will not render useless. However

luminous each clause may be, -- however clear and precise the terms

in which the deed is couched, -- all this will be of no avail, if it be

allowed to go in quest of extraneous arguments, to prove that it is not

to be understood in the sense which it naturally presents.1







§ 264. 2d general maxim: if he who could and ought to have

explained himself has not done it, it is to his own detriment.



Those cavillers who dispute the sense of a clear and determinate

article, are accustomed to seek their frivolous subterfuges in the

pretended intentions and views which they attribute to its author. It

would be very often dangerous to enter with them into the discussion of

those supposed views that are not pointed out in the piece itself. The

following rule is better calculated to foil such cavillers, and will at once

cut short all chicanery: -- If he who could and ought to have

explained himself clearly and fully has not done it, it is the worse

for him: he cannot be allowed to introduce subsequent restrictions

which he has not expressed. This is a maxim of the Roman law:

Pactionem obscuram iis nocere in quorum fuit potestate legem

apertius conscribere.2 The equity of this rule is glaringly obvious, and

its necessity is not less evident. There will be no security in conventions,

no stability in grants or concessions, if they may be rendered nugatory

by subsequent limitations, which ought to have been originally specified

in the deed, if they were in the contemplation of the contracting parties.



§ 265. 3d general maxim: neither of the contracting parties has a

right to interpret the treaty according to his own fancy.



The third general maxim or principle on the subject of interpretation is,

that Neither the one nor the other of the parties interested in the

contract has a right to interpret the deed or treaty according to

his own fancy. For if you are at liberty to affix whatever meaning you

please to my promise, you will have the power of obliging me to do

whatever you choose, contrary to my intention, and beyond my real

engagements: and, on the other hand, if I am allowed to explain my

promises as I please, I may render them vain and illusory, by giving

them a meaning quite different from that which they presented to you,

and in which you must have understood them at the time of your

accepting them.



§ 266. 4th general maxim: what is sufficiently declared, is to be

taken for true.



On every occasion when a person could and ought to have made

known his intention, we assume for true against him what he has

sufficiently declared. This is an incontestable principle, applied to

treaties: for, if they are not a vain play of words, the contracting parties

ought to express themselves in them with truth, and according to their

real intentions. If the intention which is sufficiently declared were not to

be taken of course as the true intention of him who speaks and enters

into engagements, it would be perfectly useless to form contracts or

treaties.



§ 267. We ought to attend rather to the words of the person

promising, than to



But it is here asked, which of the contracting parties ought to have his

expressions considered as the more decisive, with respect to the true

meaning of the contract, -- whether we should lay a greater stress on

the words of him who makes the promise, than on those of the party

who stipulates for its performance. As the force and obligation of every

contract arise from a perfect promise, -- and the person who makes

the promise is no further engaged than his will is sufficiently declared,

-- it is very certain, that, in order to discover the true meaning of the

contract, attention ought principally to be paid to the words of the

promising party. For, he voluntarily binds himself by his words; and we

take for true against him what he has sufficiently declared. This question

seems to have originated from the manner in which conventions are

sometimes made: the one part