IMAGE EVALUATION TEST TARGET (MT-3) /> 0y^ A- 1.0 Ifi- li I.I Us - 6" 1^ M 5 1.8 11.25 11.4 mil 1.6 VI ^ n ^.,. ^ o>. ^1 op. /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian institute for Historicai Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. L'Institut a microfilmd le meilleur exemplaire qu'il lui a dt6 possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la m^thode normale de filmage sont indiquds ci-dessous. n Coloured covers/ Couverture de couleur D Coloured pages/ Pages de couleur D Covers damaged/ Couverture endommagde D Pages damaged/ Pages endommagdes D Covers restored and/or laminated/ Couverture restaur6e et/ou pellicuide D Pages restored and/or laminated/ Pages restaur^es et/ou pellicul6es n Cover title missing/ Le titre de couverture manque r~~y Pages discoloured, stained or foxed/ L_J Pages ddcolor^es, tachetdes ou piqu6es D Coloured maps/ Cartes gdographiques en couleur n Pages detached/ Pages ddtach^es D D U Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relid avec d'autres documents Tight binding may cause shadows or distortion along interior maigin/ Lareliure serr6e peut causer de I'ombre ou de la distortion le long de la marge int6rieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajout6es lors d'une restauration apparaissent dans le texte, mais, lorsque cela dtait possible, ces pages n'ont pas dt6 film6es. Q D D D D Showthrough/ Transparence Quality of print varies/ Quality indgale de I'impression Includes supplementary material/ Comprend du materiel supplementai^a Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partieilement obscurcies par un feuillet d'errata, une pelure, etc., ont 6t6 film^es d nouveau de facon d obtenir la meilleure image possible. y Additional comments:/ Commentaires suppl^mentaires: Wrinkled pages may film slightly out of focus. This item is filmed at the reduction ratio checked below/ Ce document est filmd au taux de reduction indiqud ci-dessous. 10X 14X 18X 22X 26X 30X 7 12X 16X 20X 24X 28X 32X ails du idifier une lage rata telure. H 32X The copy filmed here has been reproduced thanks to the generosity of: Seminary of Quebec Library The Images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies In printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shell contain the symbol —»- (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. I\^aps, plates, charts, etc.. may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: 1 2 3 L'exempiaire fiim6 fut reproduit grdce d ia ginirositA de: Siminaire de Quebec Bibliothique Les Images suivantes ont 6t4 reproduites avec le plus grand soln. compte tenu de la condition et de la nettetA de rexempiaire filmA, et en conformlt6 avec les conditions du contrat de filmage. Les exemplaires orlginaux dont la couverture en papier est imprlm^e sont filmAs en commenpant par le premier plat et en terminant soit par la derniire page qui comporte une empreinte d'impression ou d'iliustration, soit par le second plat, selon le cas. Tous les autres exemplaires orlginaux sont film6s en commengant par la premiere page qui comporte une empreinte d'impression ou d'iliustration et en terminant par ia derniire page qui comporte une telle empreinte. Un des symboies suivants apparaitra sur la dernlAre image de cheque microfiche, salon le cas: le symbole —^ signifie "A SUIVRE", le symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre fllmis k des taux de reduction diffirents. Lorsque le document est trop grand pour Atre reproduit en un seui clich6. ii est filmd i partir da i'angie sup6rieur gauche, de gauche A droite. et de haut en bas. en prenant le nombre d'images n6cessaire. Les diagrammes suivants iilustrent ia m^thode. 1 2 3 4 5 6 ; THfi^ ARTICLE LAW OF NATIONS REPBINTED FROM THE SUPPLEMENT X ■-■^i TO THE f '"■^:^\v 1 1 \4 ENCYCLOPEDIA BRITANNICA. •«.'*-■* ■ .aaSJ*-*-.**f #fl»*.'".i«jKlir«A*^«>«n t ■..'■■ t \ '» ■• •i/C'v_ Pirift<«r, ^I, Well^^riel^ Oi^Oi^ijlMet, Londdn, \.v ^ * ■ i.,; <>.')r»(;« p^-.;,/o5 t.;,'it;if nriy '}•> »'■.'., / : « •■•'(■ hu .J iJ .ii-jijiio ,'■■■ >^- ■ ;• f lit ' •' tt ' ^ >fJ'^«P '.f ■;;••>■ i. ' I," M ',.■■' ■ LAW OF NATIONS. t' Oi '.y i n'.'I. ■ ;;n v> v ' iO'l ,.(.i^..j.ii{j;'t h> o;f ..rr Ideas involved in the term Law.-^Tkese ideas how modified in thik temi Law of Nations. — The only sanction applicable to the Law rf Nations is the popular sanction. — What dependence may he pliieed upon the popular sanction. ¥N the meaning of the word Law, three principal ideas are involved t -*- that of a Command, that of a Sanction, and that of the Authority from which the command proceeds. EvJery law imports, that something is to be done; or to be left undone. But a Command is impotent, unless there is the power of enforcing i^. The power of enforcing a command is the power of inflicting penaltieBy if the command is not obeyed. And the applicability of the penaltiet constitutes the Sanction. There is more difficulty in conveying an exact conception of tUfi Authority which is necessary to give existence to a law. It is eviden^ that it is not every command, enforced by penalties, to which we should extend such a title. A law is not confined to a single act ; it embraces a class of acts; it is not confined to the acts of one man; it enibractei those of a community of men. And the authori^ from which it emanates must be an authority which that community are in the habit of obeying. An authority to which only a temporary obedience is paid, does not come up to the notion of that authority which is requisite to gitlS existence to laws ; for thus, the commands of a hostile army, committini^ plunder, would be laws. The conditions, which we have thus described, may ^H be Visibh' traced, in the laws which governments lay down for the communities iX> which they belong. There we observe the (command i there thepuhis^ ment prescribed for its violation ; and there the commtmdinj^ flUthorjit^ to which obedience is habitually paid. Of these conditions how many can be said to belong t6 any fbivijf^ included under the term Law of Nations ? q2 By that term is uuderstood, something which either does^ or which, it is sapposed, ought to bind the conduct of one nation towards another* But it is not understood, that one nation has a right to command ano* ^"ttier. When one nation can be commanded by another, it ia dependent upon that other ; and the laws of dependence are different from those Which wcire at present considering. An independent nation would resent, instead of obeying, a command delivered to it by another. Neither can it properly be said, that nations, taken aggregately, prescribe those laws to one another severally ; for when did they ever combine in any such prescription i When did they ever combine to vindicate the violations of them? It is therefore clear, that the term Command cannot be applied, at least in the ordinary sense, to the laws of nations. In the next place, it would not seem, that any thing, deserving the name of Sanction, belongs to them. Sanction, we have already seen, is punishment. Suppose nations to threaten one another with punishment, for the violation of any thing understood to be a law of nations. To {>unish implies superiority of strength. For the strong, therefore, the aw^'ofhatioRs^ iney perhaps have a sanction, as against the weak. But Hfhat^cikn it have a8,9gajnst the strong? Is it the strong, however, or is it^lh^ weak) by whom it is most liable to be violated? The answer it obvious and undeniable.— -As against those from whom almost solely any yiojation of the l^ws of potions need be apprehended, .there appears, ^erefore, to be np sanction at all. If it be said, that several nations may combine to give it a sanction in favour pf- the wpjx)f, we might, for a practical answer, appeal to expe> rience. Has it been done ? Have nations, in reality, combined, so con- stantly and steadily, in fayour o^ the law of nations, as to create, by the certainty' of punishment^ an overpowering motive, to unjust powers, to abstain from its violation? For, as the laws against murder would have ])0.efj&pa,cy, if the punishment prescribed were not applied once in fifty, or a hundred, times, so the penalty against the violations of the law of idatibfis can have no efficacy, if it is applied unsteadily and rarely. ,. On the mode iu which it has been applied, we may appeal to a great authority. Montesquieu, says — " Le droit public est plus connu en £uippe^u*ep. Asie : ce pendant on pcut dire que les passions des princes Arta jpatience' f)es peuples — la flatterie des ecriyains, en ont corrompu toils les princi pes. Ce droit, tel qu'il est aujourd'hui, est une science qui ^i^prei^ aiix princes jusqu'i quel point ils peuveht violer la justice,, sans coipauer leprs int^r^ts.'' — fL^''« ■I'^''«fl««s? XCIV.) To go a little deeper, we may consider, whether the interest of nations, that whicji, in the loiig run, governs them all, can ever produce com- biQatiop^, rromi which an effectual sanction, of the nature in question, can bvhich pass under the n^me of Laws of Nations, as utterly without force and in- fluence ; and the discourse which is made about them, as mere affectation and impertinence f Not wholly so. It is of use, that the ordinary intercourse of nations should be conducted according to certain forms, generally known and approved ; because they will be observed on all occasions, when there is no particular motive to violate them, and will often prevent disputes which might arise on frivolous occasions. I'hey resemble, in this respect, the ceremonial of a court, or the established forms of pol'.!^ od society. The objects, however, which are understood to be rmbraced by the law of nations, are of two sorts. The first are those minor objects, which partake more of form than of substance. I'he other are objects which deeply affect humanity. That there are certain interests of nations, which it were good to have considered as their rights, and of which it is infinitely to be desired that the violation could be prevented, is most true. But if national law has no penalty annexed to it ; if the weaker party, who is wronged, has no means of redress ; where, it may be said, is the advantage of such a law ? Or where the propriety of calling that a law, which is only a declaration respecting rights ; violated by the more powerful party with impunity, as often, and to as great an extent, as he pleases? ,fj,:rtu,"»>(: «i.'«'i vv •.•;.•,'■>.-■ There is still, however, a power, which, though it be tiot the physical fprce, either of one state, or of a combination of states, applied to vin- 6 (licate a violation of the law of uatioM, is not without a ^r€At swaj in human affairs ; and wliich, as it iaMry nearly the whole of the power which can be applied to secure the observation of that law, deserves to be carefully considered, that, by duly appreciating its efficacy in this im- portant affair, we may neither trust to it where it will disappoint our ex- pectation, nor neglect the use of it where it may be turned to advantage. That the human mind is powerfully acted upoin by the approbation or disapprobation, by the praise or blame, the contempt and hatred, or the love and admiration, of the rest of mankind, is a matter of fact, virbich, however it may be accounted for, is beyond the limits of disputation. Over the whole iield of morality, with the exception of that narrow part which is protected by penal laws, it is the only power which binds to good conduct, and renders man agreeable and useful to man. It is evident, also, tliat where there is not great inequality, it is a power, the binding force of which must be necessarily great. Because every individual, considered in himself, is weak and helpless as compared with the rest of the community. Unless, therefore, he can prevail upon them to abstain from injuring him, he must be exposed to unlimited suffering. And if, on the other hand, he can prevail upon them to combine in doing, or in desiring to do him good, he is put in the way of receiving perpetually the greatest advantages. His motive, therefore, to obtain the favourable, and to avoid the unfavourable regards of the members of the society in which he lives, is of the highest order. But he can obtain their favourable, and avoid their unfavourable sentiments, only by abstaining with scrupu- lous anxiety from doing any injury to them, and observing all such modes of conduct as are calculated to be useful and agreeable to them. The value which men set upon these favourable regards of the persons , among whom they live, is strikingly manifested by some of the most | ordinary forms of their discourse and behaviou**. What is more esteemed than character f What injury reckoned more deep and unpardonable than that of the man who exerts himself to take away unworthily any part of the reputation of his neighbours ? But what is character, if not the title to the favourable sentiments of other men f And what is the loss of character, but the opinion of other men, that we do not deserve those favourable sentiments, with which they have been accustomed to re- gard us ? Honour and shame, those emotions, the intensity of which is proved by so many phenomena of huntan life, are but the feelings which attend upon those different situations. When a man finds himself in possession of the love, the esteem, and admiration of those by whom he is sur- rounded, he is tilled with that delight which the belief of the secure pos- session of a 1^ at source of benefit, cannot fail to inspire : he is fearless, elated, and co, iident; the principal characteristics of that state of mind which we denominate pride. When he is conscious, on the other band, of having forfeited in any degree the favourable sentiments of those among whorn he lives, he suffers that depression which the loss of a highly valued possession is calculated to create ; he ceases, in some degree, to look eat 8waj he power jserves to 1 this im- )t our ex> d vantage, ibatioo or ! id, or the ' t, which, Imputation, rrow part Is to good 9 evident, 16 binding individual, the rest oif to abstain . And if, ■ ing, or in etually the 'avourable, society in avourable, th scrupu- Lich modes n. ie persons ' the most ; esteemed jardonable ly any part if not the he loss of irve those led to re- is proved lich attend possession he is sur- ecure pos- is fearless, e of mind ther hand, ose among ;hly valued to look forward to bii fellow men for good, aqd feels more or less the apprehen- ■ion of evil at their hands ; he fears to prove how far their disapprobation of hiui reac|)es, or to excite them to 4efine it too accurately for them- selves ; he bangs down his head, and dares not so much as look them in the face. ,} • j •/, When men are favourably situated for having those impressions deeply ■truck ; or, more correctly speaking, when those combinations of ideas have consistently and habitually been presented to their minds, the asso- ciation becomes a( last so indissoluble and strong, as to operate, even where the connection among the things themselvei may not exist. When persons, who have been educated in a virtuous society, have, from their infancy, associated the idea of certain actions with the favoura- ble sentiments, and with all tlie advantages which flow from the favourable sentiments of mankind ; and, on the other hand, have associated the idea at certain other actions with the unfavourable sentiments, and all the disadvantnges which flow from the unfavourable sentiments of mankind ; 19 painful a feeling comes in time to be raised in them at the very thought of any. such action, that they recoil from the perpetration of it, even in cases in which they may be perfectly secure against any unfavourable sentiments, which it might be calculated to inspire. It will, we apprehend, upon the most accurate investigation, be found, that this is the only power to which we can look for any considerable sanction to the laws of nations ;-— for almost the only species of punish- ment to which the violation of them can ever become amenable: it is the only security, therefore, which mankind can ever enjoy for the benefit which laws, well contrived for this purpose, might be calculated to yield. It is in the next place incumbent upon us to inquire, what dependence can be placed upon this security, in the set of cases now under considera- tion ; and in what circumstances it is calculated to act with the greatest, in what with the least efiicacy, toward this important end. A power, which is wholly derived, from the good which may follow the favourable, the evil which may follow the unfavourable sentiments of mankind, wijl act most eflicaciQusly upon him who is the most, least efficaciously upon him who is the least exposed to receive good and evil from the imniediate inclination of his fellow men. It seems to be evident, ti.ut he who is most weak, as compared with the rcMt of the community, is the most exposed to receive good or evil in consequence of their favourable or unfavourable sentiments ; and that he, on the other hand, who is the most powerful, as compared with them, is the least exposed to receive good or evil in consequence of those sen- timents. When men are nearly upon equality, no one has any. chance of in- ducing pther people ;to abstain from hurting him, but by his abstaining iTrom doing hurt in any way to them. He has no means of inducing them to do him any acts of service, but by their expectation of receiving similfiir acts of service from him. He is, therefore, intensely interested in its beiiig generally believed pf.liim, that he is a man who is careful to iibsttiiii from injuring, and ever ready to exert himself to do lervices to others. I'be case is exceedingly diflferent, where one man is lifted hi^h abov« others. In that case he has powerful means of protection agamst their hurtful acts, powerful means of obtaining their services, altogether independent of his conduct, altogether independent of his disposition either to abstain from injuring them, or to render them service. So far, therefore, as good conduct arises from a man's dependence upon the sentiments of others ; and from this is derived the moral power, to which alone the term moral sanction or obligation can properly belong : the security for good conduct is apt to be lessened, m exact proportion as any one is raised above the level of those composing the mass of the community, if any man possesses absolute power over the! rest of the community, he is set free from all dependence upon their sen- 1 timents. In this, or nearly in this situation is every despot, having a well established authority. So far as a man is educated as a despot, he can therefore have but few of those associations, on which a conduct, benefi* ; cent to others, depends. He is not accustomed to look — for the servicei; which he needs, or the evils which he apprehends, from others — to the | opinion which they may entertain of the goodness or badness of his coo< duct; he cannot, therefore, have that salutary train of transitions from thej idea of an evil act to that of the condemnatory sentiments of mankind, and fiom the condemnatory sentiments of mankind to the forfeiture of all those delights and advantages which spring to him from the operation of their favourable regards ; — associations which in men favourablr situated become at last habitual, and gOvem the conduct, as it were, mechanically, without any distinct recurrence to the conse(;^uences, upon the thought of which, nevertheless, this salutary and ennobhng sentinieui ultimately depends, and from which it has been originally derived. If such is the situation of the despot with regard to these important I associations, it is in a proportional degree the situation of all those who partake of that species of elevation. In an Aristocratical country, for example, a country in which there is great inequality of wealth, those who possess the large fortunes, are raised to a great degree above any 'chance of receiving evil, or of standing deprived of any good, because the great mass, the lower ordjers, of their countrymen, think unfavourably of them. They are, no doubt, to a considerable degree dependent upon what the | people of their own class may think of them ; and it is accordingly found, that those qualities and acts, which are useful to that class, are formed | into a particular, an Aristocratical code of morality, which is very effec- tually sanctioned by the favourable and unfavourable sentiments of the I Aristocratical body, at the same time that it is exceedingly different from that more enlarged and all-comprehensive code, on which the happiness of the greatest number depends, and to which alone the epithet moral in | propriety belongs. Such being the state of the faicts connected with this important case, it I remains to see what are the inferences, bearing upon it, which we are entitled to draw from them. We have already ascertained, that the onl; 0' power which can operate to sanction the laws of nations; in other worHi, to reward or punish any nation, according as it obeys, or as it disobeys thein; is the approbation and disapprobation of mankind, it follows, that the restraining force is, in this case, determined by the associations which they who govern it mtiy have formed with the approbation and disapprobation ot' mankind. If they have formed sirong asBoriation*), of a pleasurable hiiui, with the approbation, strong nNsoriatioiiii, of the painful kind, widi llie (iis.ipprobation of mankind, the restraining force will be great; if they linve not formed such associations, it will be feeble and insignificant. It lias, however, appeared, immediately above, that the rulers of a country, of which the government is either monarchical, or aristocratical, can hdve these associations in but a very low degree ; as those alone, who are placed on a level with the great body of other men, are placed in circum- stances colculated to produce them. It is only then in countries, the rulers of which are drawn from the mass of the people, in other words, in dcmocratical countries, that the sanction of th6 laws of nations can be expected to operate with any considerable effect. >• >- i"t: '( .!i ;(, !. ilV m \i .1; , .0, W''!!". IVhat is required to give to the Law of Natiom itt greatest perfection, — Necessity for a Code of International Law. — nights of Nations, Having thus ascertained, what is the power which restrains from violating the laws of nations, and what the description of rulers upon whom its restraining force is the greatest, we are next to inquire, by what expedients the force of it may be raised to the greatest pitch, and the greatest amount of benefit may be derived from it. It is sufficiently recognized, that whatever is intended to produce any effect as a punishment, produces it in a greater degree, in proportion as it operates with greater precision and certainty. The inquiry, then, regards the means of giving precision and certainty to those sentiments of the world, on which the binding power of the laws of nations so greatly depends. Two things are necessary to give precision and certainty to the opera- tion of laws within a community. The one is, a strict determination of what the law is, the second, a tribunal so constituted as to yield prompt and accurate execution to the law. It is evident, that these two iEire indispensible requisites. Without them no penalties can operate with either precision or certainty. And the case is evidently the same, whether we speak of the laws which regulate the actions of individual and individual within the state, or those which regulate the actions of one state towards another. It is obvious to remark, in the first place, that with regard to the laws of nations, not one of these two indispensible requisites has ever yet had any existence. It has neither been determined what the laws in question n 10 are> nor has any common tribunal for cognizance ot the violations of them ever been constituted. With reepect to the last, not so much as the idea of it s^e.ins to have been entertained. And with respect to the first, though, much has been written, it has been almost wholly in the way of vague: and general disco'orse. Hardly a single accurate definition has yet been applied to any part of the subject. , ; '.HerQ, then, we come to what is obviously the grand inquiry; namely, ^rstf What can be done towards defining the laws of nations? and, secondly, What can be done towards providing a tribunal for yielding prompt and accurate decisions in conformity with them ? in other words, for applying with the greatest possible efficacy the opinion of the world for restraining the violation of them ? - Iq |he Article Jurisprudence, to which it is necessary for us here tp jrc^VQrtj we have sufficiently made it appear, that the foundation of all )a,\vis the constitution of rights. Of two parties, unless it is previously determined what each shall enjoy, it can never be determined whether one has improperly disturbed the enjoyment of the other. To determine, however, what a parly is to enjoy, is to determine his rights. Now, then, with regard to nations, the question is, what ought to be constituted rights ? or in other words, what would it be desirable, for the good of mankind upon the whole, that the several nations should respect as the rights of each other i • This, it is pretty obvious, is one of the most extensive of all inquiries, far' exceeding the limits of an article in the present work. We can attq^ptlj^le more than to show the way in which the inquiry may be Carrie^ OH-. , •In^the Article Jurisprudence, we have endeavoured to clear up the meaning, which in legii^lation can, without leading to confusion, be alone attached to the term Rights ; and we have there likewise seen, that there ^re but two classes of objects, in which individuals can have rights; namely. Things, and Persons. I The case, we believe, will be found the same with respect to nations. Thjpiy also ' can have rights, in nothing but Persons, and Things; Of course, it, follows, that they can receive injury in nothing but in Persons, or Things. The inquiry, however, with respect to the rights of nations, is not 89 i^iBjile, as that with respect to the rights of individuals; because bfjtween jp^ividuals, subject to the same system of laws, the legislature r,epogai^e« no state of hostility ; but between nations there is the State of War, «ind the State of Peace, and the rights which are understood to helping to nations are diffi^rent in these two different states^ In the state of wjirj nations recognize in one another very few rights respecting either f»er3ons pr thuigjs; they kill the one, and take and destroy the other, with ittle other limit than the want of ability. In the state of peace, they respect a? rights I^elc^ging to one another, nearly the same things which fire constituted rights of individuals, by the ordinary systems of na- tional ,liiiWf ■lii 11 »■' 111 'ti'^ ■ ' i.-.,ix.'i!i ^.-. ..J. , . TIT Hluil should he recogriized as Rights in time of Peace, — IVie Property of Individuals. — The Persons of Individuah,-r-Th^ Property or Do* minion of the State. — Dominion in Land. — Dominion in nater. We shall begin with the consideration of those things which it wolJd be desirable that nations should respect as the rights of one another, ill the time of peace. . ,' '. And, Jirst, of rights with respect to things. As the subject of the rights of nations, things, may be divided into two sorts; things belonging to some individual member of th6 nation, and things belonging to the nation in its collective, or corporate, capacity. J' : m U ;o r liloir Those rights in things which the nation guarantees to its individual members, within the nation, it would be- desirable, with hardly any exception, that nations should respect in regard to one anoUier ; that those things, for example, which the government of the country to which a man belongs, would regard, and would compel all its subjects to regard, as his property, the governments of all other countries should respect, and compel all their subjects to respect as his property. There are two states of circumstances in which questions may arise between nations, respecting the property of their respective subjectsr. The first, where the property in question, when the cause of dispute arises, is within the country of the individual to whom it belongs : T^^ second, where the property has, by its owner, been previously removed into the country, with which, or some of the. inhabitants of which, the dispute has arisen. - 1. The ill St set of circumstances exists between two conterminous countries ; the bordering inhabitants of which are neighbourtj to one another, and may, as any other neighbours, infringe the properties of one another. The proper mode of settling these disputes seems to be sufficiently obvious. The rights of the party complaining should be adjudged, according to the laws of the country to which he belongs. But the party sued or prosecuted, should be amenable only to . the tribunals of the country to which he belongs ; that is to say, the question should be tried before the tribunals of the country of the defendant; but the detinition of the right in question should be taken from the law of the country to which the plaintiff belongs. It might in some casey be convenient for countries in this situation, to agree in constituting a common judicature, appropriated to these disputes, to consist, for example, of two judges, one of each country, with power to chuSe a third, when they could not agree. The injury complained of may be capable of redress by a remedy of the nature of a civil suit merely ; or it may be of that more atrocious sort, theft or robbery, for which the remedy of punishment is required. Jt would appear that punishment ought to be apportioned according to the law.8 of the country to which the party who has incurrt^d it belongs. Whatever would be the puuishment decreed for the offence, if committed tigaiust a man of his own country, such a punishment he ought to sustain, for the offence against the man of the other country. The question oi Punishment is here understood, as extraneous to that of compeusation. 'his ought always to be made to the party injured, where it is capable of being; made, and in a case of property it is always capable ; if not by Ibeauthor of the injury, from want of property, or other cause, at least by thegovemment of the country to which he belongs. n^ni ii''j]>- 2. Where a man has removed his property from his own into another country, there seems to be no peculiar reason why it should be regulated by any other laws than those of the country into which he has removed it; Why the rights which it confers should be otherwise determined; or the violation of them otherwise punished. .iuifji«'3 w |-3ViJ5rsiw '^ ' " We have now considered, though in a very general manrier (and our limits preclude us from attempting any thing more), the mode in which nations should agree about the rights of one another (in other words, the laws they should establish)/ in as far as the property of individuals, belonging to them, is concerned. After the property of iudividuals, their persons are to be considered as requiring the protection of laws. There is more difficulty in determining what is desirable, as inter- national law, upon this part of the subject, than in that which regards the property of individuals. It is desirable that the persons of tlie ii> habitants of every country 'should receive protection, according; to the lavvs of their own country. But it is also desirable that each man should sustain punishment according to the laws of his country; and these two objects are to a certain extent inconsistent with one another. The inconvenience, however, seems to be greater, in permittiug tiie inhabitants of one country to be punished, according to the laws of another ; than in leaving the inhabitants of one country to the same measure of protection against injury to their persons from the inhabitants of other countries, ad is afforded to the inhabitants of those countries by their own laws. Many cases, indeed, may be conceived, in which this is a measure of protection which all reasonable men would allow to be inadequate. In such cases, however, the only remedy seems to be the formation of a compact, by which a mode of proceeding, agreeable to the sentiments of both parties, may be positively prescribed. I'his latter expedient is of course extraneous to that equitable construction which ought to be uniformly applied by the tribunals of one country to the iipijuries per^jetrated, by those whom they may have to judge, upon the inhabitants of another country. If an inhabitant of Persia, for example, should force cowbroth down the throat of an inhabitant and native of Hindostan, the tribunals of Persia should not punish this out- rage, as tliey would punish one Persian for making another swallow the same liquid. To the Persian it would be a trifling injury, and more than a trifling, punishment would not be required. To the Hindu, it would be one of the greatest ot" s'il conceivablt; injuries. It ought to be> there- fore, prl upon thtt dan»& fooling, with an injury of an equal degree/ done M \u u Pcisiui:; the nature of tlie injtuy, not the external act, should be (he object of consideration : »nd whatever the punishment \vhich would l;e awarded against a Persian for one of the greatest injuries of wb'dh he coul(^ be gui'ty to a Persian, the same ought to be inflicted upon hini, for this, one of the grp' -^st which Jie couid occasion to a Hindu. l^esides the cc> ' in which a government, as representative of tbe country, may be Lujured through the individuals who live under its pro- tection, there are cases in which it may be injured more directly. Cer- tuiii things belong as property to the government, without belonging tu uuy individual; and there are persons who are members of the goveruiiiciit, or agents of the government, and who may receive injuries in that capacity, distinct from those which ai&ct them, as private iiulividitals. I'hese are the cases to which it now remains that we direct our attention. .i,, Those things v.hich belong to government as goods and chattels; its moveables, for example ; or the lands which it. holds, as any individual holds them, in the way of an estate; there seems to be no reason for considering as subject to any other rules, than those applicable to, the goods and chattels which belong to individuals. Of other tilings, those to which any government can claim a right, as representative of a nation, must be, either, first, Portions- of Land, „ofy secondly. Portions of Water. ;. ...; | ^^ , : . . \i ...,.., ,.,,. ;,pjt ^_ 1. The questions which relate to the rights which any nation, may claim in any portion of land, are questions regarding boundaries ; and these involve the whole of the questions respecting the acquisition of dominion. To have any standard for determining questions with regard to dominion, the different modes of acquiring dominion, must be re- cognized ; those which are proper to be allowed and respected by other nations must be distinguished from those which are improper, must be accurately defined^ and the definitions made known. For this purpose it is easy to perceive, that the same process is necessary, as that for the definition of rights, described, at some length, in the Article in this work, entitled Jurisprudence, to which we must again refer. It is necessary, according to that example, that the events which are to be considered a.s giving commencement to a right of dominion, and those which arc to be considered as putting an end to it, should be fullj enumerated, and accurately defined. This is the first part of the process. The other part is, to distinguish the different degrees of dominion. There is a dominion which is perfect, which includes every power over the subject in question, and leaves nothing farther tu be acquired, a dominium plenum : there is also a dominiun, which is but the commencement, as it were, of dominion, and hicludes the smallest possible fragment of a full dominion. These are the two extremes; and between tiiem are various distinguishable degrees. All these should Jae fully depicted, and accurately defined. 14 when any of those events occurs which are to be considered as giving eokh|heneement to rights, it often happens that they are accompanied bv circumstances which limit the right they would otherwise convey, and render the dominion less than full. These circumstances ough^, also, to b^ completely enumerated ; and the power of each to be accurately defined. ' If this were done, an international code would be composed, in which the rights of dominion would be accurately defined ; and to determine ariy question about boundaries, or about the degree of dominion, nothing fofther would tben be necessary than an adequate inquiry respecting the Itete of the facts. =' The questions would exactly resemble those, which we have already described, in the Article Jurisprudence, in analyzing what is called pleading in judicature. In a question about boundaries th(?re is, let us iiippose, a district, over which one country affirms that it has a right of ^Otiiinion, a dominion more or less complete; and another country dehies that it has that ri<;ht. The first question is. Whether any of those ftvents has occurred, which would give the affirming country a right of dominion .'* The second question is. Whether, if such an event had occurred, it was accompanied with any of those circumstances which limit dominion, and render it less than full, and if so, under what degree of limiting power they are classed i The third question is, Whether, if an event) titus giving commencement to a right of dominion had occurred, any other event, putting an end to that rights had subsequently occurred r ' We need not here enlarge upon these several topics ; because they will be sufficiently understood by those readers who bear in mind the expositions already given in the article referred to ; and to those, who (b not, we suggest the propriety of recurring to that article, as a preparation for the perusal of this. It is evidently disproportionate to the limits which we must here prescribe to ourselves, to enumerate the events which it would be afgreeable to the interests of mankind in general, that nations should regard as giving, and alone giving, commencement and termination io rights of dominion ; because, in order to afford an enumeration which would be in any degree instructive, the reasons must be given why one set of 'Events, and not another, should have the privilege in question conferred upon them. ' It may be proper, however, in the mean time, to observe, that the events in question will not be found to be numerous, nor very difficult to discover. In fact, they are, and among civilized nations, almost always have been, pretty nearly agreed upon ; and they are the questions of modification, and questions of fact, upon which, chiefly, differences have arisen. For example, there is no djspute, that Occupancy, where there is no prior right, is an event which should be considered as giving commencement to a right of dominion. Neither is there any doubt, that the Consent of those who have a right, may transfer that right to others : or in other words, that such consent is an event which gives commencement to 15 a right in those others. Conquest, also, made in a lawful war, is recog« nized as an event of the same description ; and, it will be found upon inquiry that these do, in fact, contain the whole. For on every occasion on which dominion is acquired, the territory so acquired most, beforo hand, either have belonged to some body, or have belonged to rio hadfi If it belonged to nobody, occupancy is the only event which can be Sup- posed to give commencement to the right. If it belonged to some body^ it must, be taken from him, either willingly, or by force. If it ig taiken from him willingly, we have his consent. If it is taken by force, itii by conquest in war, that the new right is created. ' '' It is evidently, however, farther necessary, that the different specif of consent should be distinguished ; and those to which it would be prdp^f to attach this investitive power, separated accurately from those from which it should be withheld. It is here accordingly, that the doctrihcf df contracts, would need to be introduced; that the different species of t^efll applicable to this subject, in which all treaties would be included, should be enumerated ; that the etfects proper to be given to each of them should be defined ; and the mode of interpreting them, or fixing the sense whit!^ they ought to bear, accurately laid down. ' < 1 > ,!.- '^ Ij It would also be expedient, after the principal contracts, applicable to international concerns, are ascertained, to exhibit in the international code, formula, with blanks to be filled up, which should be employed by nations on all occasions of such contracts, and being framed with the ! greatest possible accuracy, would go as far as it would be possible by words to go, in excluding ambiguity, and the grounds of dispute. With respect to conquest, the last event, calculated to give commenci^* inent to rights of dominion, mentioned in the above general enumetatioDj it is allowed, that as there are some conquests which ought not to be oon- I sidered as conferring rights of dominion, there are others which ought to I be considered as doing so. It is evidently necessary, therefore, that the I line of separation should be drawn. Whether a conquest, however, should or should not be considered 9ti I conferring a right of dominion, depends very much upon the nature of J the war, through which it is made. If the war be what is regarded as jjust, and the mode of warfare conformable to the recognized rules, thef [conquest is apt to be regarded as conferring a legitimate title; if the war, and mode of war, be of a contrary description, the validity of thtf [title conferred by the conquest may be liable to dispute. ■ It is evident, therefore, that in order to define the species of conquest [on which the investitive power in question should be conferred, the c)r- Icumstances which render a war justifiable, and the mode in which it is [justifiable to carry it on, must first be ascertained. This forms the second Ipart of our inquiry : and the question regarding the investitive power of conquest must be deferred, till that inquiry is performed. ■"" 2. Having thas far considered the mode in which should be determined ithe rights which nations acquire over portions of territory, or Land, it V6 remains that we consider the mode in wiiicli their rights should be deter* mined with regard to Waters. Waters, as concerns the present purpose, are, either rivers or the sea. As the sea involves the questions of greatest extent and importance, we shall attend to that part of the subject first. ' ' 'ii^"' • ' ' "' • [ ' V ' ' ' . * Even in the language of ordinary diMcourse, the sea is dJenOminated the {Common domain of nations. The first principle with regard to the sea is this, that all nations have an equal right to the use of it. The utility of recognizing this principle, is so apparent, that it has never been the subject of any dispute. And all the rights assigned to nations severally, in the enjoyment of this common do> main, ought to rise out of this principle ; and to be limited by it. What- ever use any nation makes of it, sliottid be such us not to prevent a aimilar and equal use from being made by other nations. And every use which cannot be shown to have that effect, should be recognized as a right by the law of nations. The principal use which nations make of the sea, is that of a passage for their ships. Agreeably to the principle which we have recognized, the ships of one nation should pass in such a manner as not to obstruct' I the passage of those of another. The rules according to which the pos- sible cases of interference should be regulated, are very simple ; and are, in fad, laid down aud acted upon, with considerable accuracy. They reseilible, in all respects, those according to which the vessels of the 9ame country are made to avoid and to regulate their interferences in the rivers of the country, or upon its coasts. There would be no diHiculty, therefore, in making accurate definitions of the requisite rights, fur in- sertion in the international code. The rights being established, the violations of them should.be punished, on the same principles, as those which we have laid down in regard to the preceding cases. Either property has been imured, or persons. Iii either case, compensation is an indisputable part of the remedial process, v;herever it is practicable. In loss of property it is fully practicable, It is also practicable in many of the injuries done to the person, As in the case of offences committed on land, the rights of the individual who has suffered should be estimated according to the laws of the country to which be belongs ; but the punishment of the offender should be measured according to the laws of the country to which he belongs. In the case of piracy, which is robbery, or murder, committed by persons whom no country recognizes, and uporf whom, therefore, justice can be demanded from no foreign government, it has hitherto been the practice that the nation suffering has taken the punish- ment into its own hands. Accordingly, the punishment of piracy has always been extremely severe. It would be, no doubt, better, if a mode were adopted, by which it would not be necessary for a nation to be judge ii) its own cause. A rule does not seem impossible to be framed, ac- .r<:. ). \>:} ' -J i - ■_ t i (f ; t : .t 1 [ It cording to which die punishment of piracy might be provided for, by re- ferring those accused of it, either to some general tribunal, constituted for that purpose, or to the tribunals of some nation other than that against which the offence has been perpetrated. A general law, on this subject, to be observed by all nations, would be highly desirable- P Rules, therefore, seem not difficult to be laid down, for regulating the proceedings of nations on the high seas. A distinction, however, is drawn between what is called the higlif and what is called the narrow seas. By the narrow seas is commonly meant, some portion of sea, to' a greater or less extent, immediately surrounding a particular country ; and in which that country claims peculiar privileges. The question is, whether any such privileges should be allowed, and if allowed, to what . extent? i u^v'..;.- iw -y^'i . • ^ \, ■ .-- \a •!;-fV. v° " «'•;•!;'; ■ The regulating principle in this, as in other cases, is the general advantage, the principle of utility. There are cases, in which certain privileges, in the waters surrounding a particular country, are of so much importance to that country; and the exercise of those advantages occa- sions so very little inconvenience to other nations, that what is lost, by all of them taken together, bears.no comparison with what is gained by that particular nation. In these cases, the exercise of such privileges should be allowed ; they should, however, be defined, in as many instances as possible, and promulgated .by insertion in an international code. Of the privileges in question, are all those which are essential, or to a considerable degree subservient, to the national security. In some cases, the exclusive right of fishing might perhaps come under the same rule. But this is in general provided for, by the necessity of drawing the nets, or curing the tish upon the land, a privilege which, of course, it is in the power of any nation to give or to withhold. . " In obedience to this equitable principle, it appears, that such foppish privileges, as have sometimes been insisted upon, affording no advan- tage to one nation, which is not wholly at the cost of others — lowering the flag, for example, and such like impositions — should not be recog- nized by the code of nations. It appears, also, that those tolls which have been, sometimes, and are levied, at tlie narrow inlets of some seas, deserve to fall under the same condemnation. The passage througl^these inlets is a common good to all the nations of the earth which may have a motive to use them ; a good of the highest importance to the nations which are situated within, and to which it is the only means of maritime communication; and, while it imparts no evil to the conterminous nation, the toll which that nation levies is an advantage obtained wholly at the cost of others; and imposing upon them a burthen, in the way of obstruction and trouble, which is compensated for by advantage to nobody* . ' ' ;; ... -■ The waters, we have said, in respect to which rights shouU be as- signed to nations, are rivers and the sea. Having stated what appears necessary on the present occasion with respect to the sea, it remains that we offer the few observations required, on the subject of rivers. ./ » s 18 Kiyers are either the boundary between two countries, or Uiej uit wholly withip a particular country. .,. ,u:,j .' -i/j ...j.,.^. e^ (f' '.iri Those which are wholly within a particular country, it seems most agreeable to the principle of utility to regard as wholly belonging to that country. In the case of navigable rivers which pass through several countries, it would indeed be desirable for those countries which are si- tuated higher up than that at the mouth of each, as well as fur all those who might thus have intercourse with them, that the navigation of such livers should be free ; but it would be difficult so to regulate this right, as not to affect the security of the country through which a free navi- gation should thus be allowed; and a slight diminution in its security would be so great a loss to that country a^ would require, to compensate for it, a very great advantage to those by Nvhom the navigation was enjoyed. Unless where this advantage were very great, it would not, llicrefofi^, be agreeable to the principle which should dictate the laws of nations, that the freedom of the navigation should be r^ulated on any other principles than those of mutual agreement. . ' >■.,;. .earance and preservation ought to be the rule with regard to the latter, only to be infringed upon special and justifying circumstances. Thus far we seem to have travelled with the advantage of light to our path. We may go a little farther, with equal certainty, nrtd say, that as fnr as regards the pei Hons of those who are not engaged in the immediate business of li.»stility, very few occasions can occur, in which it would be allowable, upon any jiist principle of international law» to do them au; Injury. Leaving them out of the question, we narrow it to the case oi" the property belonging to individuals ; and shall now proceed to see how far the protection of it can be embraced within general rules. We must suppose the case, which is the strongest, that of an invading army. I^he advantage which is capable of being derived to such an enemy, by seizing and destroying the property of individuals, bears, unless in certain very extraordinary instances, no sort of proportion, to the evil inflicted upon the individuals. This, we presume, cannot admit of a dispute. Upon the principle, therefore, ^o often recognized, as that, the dictates of which ou^^jit in this affair to be solely obeyed, no such destruction, unless in such instances, ought to be sanctioned by the law of nations. Such property, it is well known, can rarely b^ counted upon, as any considerable resource; because it is to a very great extent in the power of the people invaded to drive their property away, or to destroy it. The property of individuals, in an invaded country, would in general be a much more certain resource to an invadi. ; army, if that army were to purchase from them the articles which it desired. And, perhaps, this would be the most advantageous cotn- l^romise, of which the circumstances admit; namelv, that the invading army should abstain from the violtntion of private piuperlv: but that it should in return have the benefit of an unrestricted mrtrk.-i ■ .liat noiu.it^ should be done on the part of the government of lim invaded country to Srevent its subjects from buying and selling with the invaders, as they 'OuL^ rith any other parties. It may r..> douot be true, that the plunder and devastation of a pro- Vihce, or ofh^> >iortion of a country, must have an effect in diminishing the resburcftt? w!f tb .; goverament for caiTying on the war. In this point of vic^w it i,/(U.si hv allowed that the destruction of private property is of ^liie iktiportahce to the invading nation with regard to the result of the '23 war. But the que»t>oii, in settling the difiicultieB of intcrnatiootl jurii- pnideuce, is not whether ua idvantage is gained, but whether the advan- tage, tucb as it is, be not gained, at too great a cost. If it be certain that the losing party, in consequence of the destruction in question, loses more than tli' training party gains, it is certain that the two parties, taken together, are ti ers by the proceeding ; and of course that nations, in the aggregate, are losei i upon the whole. Nay, it is cer- tain that each nation, taken by it .If, is a los< r, upon the balance of the cases in which it 19 liable to lose, nnd those in which it is liable to gatn. If it loses more in the cases in which ii bears, than it gainx in the cases in which it inflicts invasion ; and if it is as liable to bear, as to inAict, which is the usual condition of nations, it follows clearly that it is its interest to concur in a rule which shall protect th« property of indivi> duals, in cases of invasion. J£'';!i i: that more civilized mode, which has been adopted by invading niinif'),, nf availing iheniselves of the property of individuals ; by exacting .onjibMtit'ns through the instrumentality of the local authorities ; con- ri^ . .'Qiis which these authorities are left to partition among the people, as they mfse who suifer must greatly -gutweigh the advantage to those who receive. If it be so, this mode of exaction should, it is evident, be forbidden by the law of nations. If these are the principles, upon which an international code, regarding this branch of the subject ought to be constructed, they will enable us to determine the question with regard to the property of individuals in another set of ciicunijstances, to which the rules of civilized society have hardly yet begun to be applied. Whatever rules apply to the property of individuals found . upon the land, the same rules ought, by parity of reason, it should seem, to apply to it when found upon the sea. The conduct of nations, however, has hitherto not been conformable to the parity which appears to belong to the two sets of cases. Some tendern^sSf more ur less, according to the progress in civilization, appeairs to have been shown, by nil but savages, to the property of individuals upon the latid, To this hour the property of individuals upon the sea is made prize of without tiierc5r, by the most civilized nations in the world. . :• '• . V ■.,■.:.; V » The notions of [Mracy, in fact, have, on this subject, unhappily pre- vailed, and governed the minds of men. Pirates make prey of every thing. Sailors, originally, were all pirates. The seafaring state wo' a belligerent state, of almost every vessel against every other vessel. Even vvheii nations had gradually advanced into a more civilized state, and when their vessels abstained from injury to one another in a period of peace, they a^ear, when the ties of peace were dissolved, and they '^ere placed with respect to one another in a state of war upon the seas, to- have felt the force of none but their old associations, and to have looked upon the state of war as a state of piracy. Two nations at war with one another. contiime to act towards the property of individuals belonging to one another, exactly as two nations of pirates would do. Assuredly this is a state of things, to which the present intelligence and morality of the world ought speedily to put an end. The very same reasoning which we have applied to the case of the property of indivi. duals upon the land, is not less conclusive when applied to the property of individuals npon the sea. The loss to the party losing is more than an equivalent for the gain to the party that gains. (There. is another consideration of great importance. All nations gain by the free operations of commerce. If then we- were to suppose that, the losses and gains of the two belligerent parties balanced one another, which yet they never do, there is an advantage derived from their commerce to every nation- on the earth to which, in any degree, either. directly or indirectly, that commerce extends ; which advantage is either.- lost or diminished, by their preying upon the property of the individuals belonging to one another. This, therefore, is an unques- tionable balance of loss, to the general community of nations, which the law of that community ought to endeavour to prevent. >If, then, we should suppose that it were enacted as the law of nations, that the property of individuals passing on the seas .should be equally respected, in peace and in war, we may proceed to consider whether any disadvantage, nearly countervailing the general good, would thence accrue to the belligerents. . .,It may be alleged, that a nation at war with another is retarded in reducing its antagonist, by the riches which the commerce of that antagonist, if undisturbed, will place at its disposal. But it is evident that an advantage to one of two antagonists, when compensated to the other, by a power to overcome that advantage, exactly equivalent, is iu reality .no advantage at all. Such is the case with the advantage accruing to the nation with which another is at war, when the property of indivi- duals upon the sea is allowed to pass unmolested. If its riches are increased by freedom of commerce, so are those of its antagonist. The advantages are equal, where the circumstances are equal, which, in the majority of cases, they undoubtedly are. > if it be i still objected, that there may be cases in which they are not m cqnal/the dii^^Br is oliVlStts, and incontrovertible. l!^ere is no gfelbilHll TuAe without its exceptions, but partial evil must be admitted for general good. Be'sides, if the case were veiy remarkable, it might be excited from the general r\Ae.'''^''^'*'^fi-^f *:*''■ I' ' * "** ' . .: ^"^^^^'^■b^ • •;*'^' ;. If this were ndopted as part of the law of tiatibiis, alT those questidHii respecting the inaritime traffic of NentralSy questions which have be^n the source of so much troublesome inquiry, so much annnosity, and sb much mischief, would be immeduitel)' at un end. If the traffic of tlte belligerents, so far as concerned the property of individuals, were fr^fe, so would be that of all neutral nations. ^, /^ ".' ^ ;,„.,, ;^,1 ^^.11 Places actually b|ockaded, that is surronVided with' Jitt fi rf.:i^^!UB-^ '^^^^^ -■ ■■ovj^-^.^^/ When the sailors belonging to merchant ships transfer their services to {he ships of a neutral, it is not to be called desertion. It can only take T £6 place, in very considerable numbers, when seamen's wages in the neutral couutj^ are much higher than in the belligerent. l''he sailor, in this case^ leaves his own for another ^ountry, only because he improves his situation by so doing. This is a liberty, which, as it ought to belong to every body, so it ought not to be withheld from the sailor. If, indeed, an^r nation thinks, proper to forbid any class of its people to leave their country, as England with regard to its artificers, other countries cannot help that ; but they ought not to be called upon to lend their aid to such an antisocial regulation, by allowing their vessels to be searched, ai security against its infringement. Besides, it is evident, that there b a much greater security, arising from the very nature of the case, against the chance; of a nation's being, to any considerable degree, deprived of its sailors by any such means. If the sailors go into t! e neutral country because wages are higher there, a small number only will have gone, wheii wages, from diminution of the numbers, will begin to rise in th^ country which they have left, and from increase of the numbers, will begin to fail in the country to which they have been tempted to repair, when the wages of seamen have thus sufficiently risen, in the belligerent countryj, which they are sure to do if the demand for them rises, the sailors wil! i|ot only come back from every country in the world, but the sailors of other countries will hurry along with them; and the evil of desertioii cures itself. ' Only two questions, of any great importance, appear to remain ; that relating to the march of troops, for a hostile purpose, through a neutral country, and that relating to the extent to which the operations of a suc- cessful war ought to be pursued. y^ccording to the principles which we have already laid down for regulating the proceedings of a hostile army even in the invaded country, liamely, that of committing no plunder, and enjoying the right of market, it appears that the right of passing through a neutral country on similitr terms should be refused to no party. This rule, while it holds out equal advantages to aU belligerents, admits, less than any other rule, grounds of cjispute.^ " "• The ei\H, which we have already described as that alone the pursuit of which can render any war justifiable, sufficiently defines the extent to which the operations of a successful war ought to proceed. The end of every justifiable war is to obtain compensation for an injury sustained, and security against the repetition of it. The last point, that of security, alone admits any uncertainty. Nations are apt to exaggerate the demand for security ; to require too much ; very often unconsciously, from the mere cravings of self-love ; sometimes fraudulently, as a cover for aqibitious views. As the question, however, respecting what may or may not, in each instance, be sufficient security, is a question of fact, not of law, it must be determined, if determined at all, by a tribunal empowered to take cognizance of the facts. ' ., , .^ «7 0/" the construction of an International Code, and an International Tribunal.— How the nations might concur in framing an Interna- tional Code. — How an International Tribunal shoidld be construct eip[^—- Form of procedure before the International Tribunal, ,y u«30uJ< it a' We have now then laid down the principles by which, in our opinion^ the rights of nations, in respect to one another, ought to be deteiniined; and we have shown in wh^t manner those principles shouid be applied, in order to come to a decision, in the most remarkable casesbi The minor points it is, of course, not in our power to illustrate in detail ; but that will not, we should hope, be difficult, after the exemplification exhibited, and the satisfactory solutions at which we seem to have arrived, of all the more considerable questions which the subject presents. From what has been shown, it is not difficult to see, what would be the course' pursued by nations, if they were really actuated by the desire of regulating their general intercourse, both in peace and war, on the principles most advantageous to them all. Two grand practical measures are obviously not only of primary importance toward the attainment of this end, but are of indispensable necessity toward the attainment of it in any tolerable degree. These are, first, the construction of a Code; and, secondly, the establishment of a Tribunal. It is perfectly evident, that nations will be much more^kely to con- form to the principles of intercourse which are best for all, if they have an accurate set of rules to go by, than if they have not* In the i^rst place, there is less room for mistake ; in the next, there is less room for plausible pretexts; and last of all, the approbation and disapprobation of the world is sure to act with tenfold concentration, where a precise rule is broken, familiar to all the civilized world, and venerated by it all. ouT How the nations of the civilized world might concur in the framing of sudh a code, it is not difficult to devise. '1 hey might appoint delegates to meet, for that purpose, in any central and convenient place; :wfaere^ after discussion, and coming to as full an understanding as possible upon all the material points, they might elect some one person, the most capa*. ble that could be found, to put these their determinations into the proper words and form, in short, to make a draught of a code of international law, as e€fectually as possible providing for all the questions, which could arise, upon their interfering interests, between two nations. After this draught was proposed, it should be revised by the delegates, and approvefl by them, or altered till they deemed it worthy of their approbation. It ihottld then be referred to the several governments, to receive its final sanction from their approbation ; but, in the mean time, it should be published in all the principal languages, and circulated as extensively as possible, for the sake of two important advantages. The firsti/rodld be, that, the intelligence of the whole world being brought to operate upon it, and suggestions obtained from every quarter, it might be made as per- fiS fdtt M possible. The second would be, that the eyes of all the world bieiog fixed upon the decision of every nation with respect to the code, evtry nation might be deterred by shame from objecting to any im- portant article in it. ,^ As the sflnction of general opinion is that upon which chiefly, as we have already seen, such a code must rely for its efficieiioy, not a little will depend upon the mode in which it is recognized and taught. The recogintion should in each country have all possible publicity aDd •olemnity. £very circumstance which can tend to diffuse the opiniou throughout the earth, that the people of each country attach the highest importance to such a code, is to themselves a tirst-rate advantage ; because it must be of the utmost importance to them, that all the nations of the earth should behave towards them upon the principles of mutual beneficence; and nothing which they can do can have so oreat a tendency to produce this desirable effect, as its being generally known that they ▼enerate the rules which are established for its attainment. If nations, then, were really actuated by the desire of regulating their mutual intercourse upon principles mutually beneficent, they would adopt measures for having a code of international law constiucted, solemnly recognized, and universally diffused and made known. But it is not enough that a code should exist ; every thing should Ic done to secure a conduct conformable to it. Nothing is of so much importance for this purpose as a tribunal ; before which every case of infringement should be tried, the facts of it fully and completely ex- plored, the nature and degree of the infringement ascertained ; and from which a knowledge of every thing material to the case should be as rapidly as possible diffused through, the world; before which also ail cases of doubt should regularly come for determination : and thus wars, between nations which meant justly, would always be avoided, and asugma would be set upon those which justice could not content. The analogy of the code, which is, or ought to be, framed by each state for regulating the intercourse of its own people within its own terri- tory, throws all the illustration which is necessary upon the case of a tribunal for the international code. It is well known, that laws, however carefully and accurately constructed, would be of little avail in any country, if there was not some organ, by means of which it might be determined when individuals had acted in conformity with them, and when they had not ; by which also, when any doubt existed respecting the conduct which in any particular case the law required, such doubt might be authoritatively removed, and one determinate line of action prescribed. Without this, it is sufficiently evident, that a small portion of the benefit capable of being derived from laws would actually be attained. Jt will presently be seen how much of the benefit capable of being derived from an international code must be lost, if it is left destitute of a similar organ. We shall first consider, in what manner an international tribunal might be constructed ; and, next, in what man- lier it might be appointed to act. S9 As it is uoderstood that questions relating to all nations should coatfe before it, \(hat is desirable is, that all nations should have equal security for good judicature from it, and should look with equal confidence to its decisions. An obvious expedient for this purpose is, that all nations should con- tribute equally to its formation ; that each, fur example, should send to it a delegate, or judge. Its situation should be chosen for its accessibility, and for the means of publicity which it might afford; the last being, beyond comparison, the advantage of greatest importance. A s all nations could not easily, or would not, send, it would suffice if the more civilized and leading nations of the world concurred in the design, with such a number of the less considerable as would be sure to follow their example, and would be desirous of deriving advantage from an instrument of protec- tion, which to them would be of peculiar importance. As it is found by specific experience, and is, indeed, a consequence of the ascertained laws of human nature, that a numerous assembly of men cannot form a good judicatory ; and that the best chance for good judicial service is always obtained when only one man judges, under the vigilant e^es of interested and intelligent observers, having fuN freedom to de- liver to the world their sentiments respecting his conduct ; the whole of these advantages may be obtained, in this case, by a very effectual expe- dient. If precedent, also, be wanted, a thing which in certain minds holds the place of reason, it is amply furnished by the Roman law ; ac- cording to which, a great number of judges having been chosen for the judicial business generally of the year, a selection was made out of that number, according to certain rules, for each particular case. Every possible advantage, it appears, would be combined in the inter- national tribunal, if the whole body of delegates, or judges, assembled from every country, should, as often as any case for decision came before them, hold a conference, and, after mature deliberation, choose some one individual of their body, upon whom the whole duty of judge should, in that case, devolve ; it being the strict duty of the rest to be present during tlie whole of his proceedings, and each of them to record sepa- rately his opinion upon the case, after the decision of the acting judge had been pronounced. It woidd be, no doubt, a good general rule, though one can easily foresee cases in which it would be expedient to admit exceptions, that the judge, who is in this manner chosen for each instance of the judicial service, should not be the delegate from any of the countries immediately iuvolved in the dispute. The motive to this is sufficiently apparent. We apprehend, that few words will be deemed necessary to show how many securities are thus provided for the excellence of the judicial service. In the first place, it seems impossible to question, that the utmost fairness and impartiality are provided for, in the choice of the judge; because, of the two parties involved in the dispute, the one is represented by a delegate as much as the other, and the rest of the delegates ars in- 30 ihffereDt between them. In general, therefore, it is evident, that the 9ioister interest on the two sides being balanced, and there being a great preponderance of interest in favour of nothing but a just decision, that interest will prevail. Tbe best choice being made of a judge, it is evident that he would be •o situated, as to act under the strongest securities for good conduct. .Acting singly, he would bear the whole responsibility of the service re- quired at his hands. He would act under the eyes of the rest of the -assembled delegateK, men versed in the same species of business, chosen on account of their capacity for the service, who could be deceived nei- ther with respect to the diligence which he might exert, nor the fairness and honesty with which he might decide ; while he would be watched by the delegates of the respective parties, having the power of interest sti- mulating them to attention ; and would be sure that the merits or demerits of his conduct would be made fully known to the whole, oV the greater part of the world. The judicatory being thus constituted, the mode of proceeding before it may be easily sketched. The cases may be divided into those brought before it by the parties concerned in the dispute; and those which it would be its duty to take up, when they were not brought before it by any of the parties. A variety of cases would occur, in which two nations, having a ground of dispute, and being unable to agree, would unite in an application to the international tribunal for an adjustment of their differences. On such occasions, the course of the tribunal would be sufficiently clear. The parties would plead the grounds of their several claims: the judge would determine how far, according to the law, they were competent to support those claims ; the parties would adduce their evidence for and against the facts, on which the determination of the claims was found to depend; the judge would receive that evidence, and finally decide. Ail this is so per- fectly conformable to the course of pleading, and receiving proof, in the case of suits between individuals, as analyzed and explained in the Article JuRispRUDRNCE, that it is unnecessary to be more particular here. If farther exposition is required, it will be found upon a reference to the ar- ticle to which we allude. Decision, in this case, it is observable, fully accomplishes its end; because the parties come with an intention of obeying it. Another, and a numerous class of cases, would probably be consti- tuted, by those who would come before it, complaining of a violation of their rights by another natiori, and calling for redress. This set of cases is analogous to that, in private judicature, when one man prosecutes another for some punishable offence. It should be incumbent upon the party thus applying to give notice of its intention to the party against which it is to complain, and of the day on which it means that its complaint should be presented. If both parties are present, when the case comes forward for trial, they both plead, according to the mode described in the Article Jurispri- 31 DENCE; evidence is taken upon the deciuve facts; and if injury has been cominitted, the amount of compensation is decreed. When it happena that the defendant is not present, and refuses to plead, or to submit, in this instance, to the jurisdiction of tiie court, the inquiry should notwith- standing go on ; the allegations of the party present should be heard, and the evidence which it adduces should be received. The non-appearance of the party defendant should be treated as an article of evidence to prore the truth of its opponent's allegations. And the fact of not appearing should, itself, be treated as an offence against the law of nations. It happens, not unfrequently, when nations quarrel, that both parties are in the wrong; and on some of these occasions neither party might think proper to apply to an equitable tribunal. This fact, namely, that of their not applying to the internntional tribunal, should, itself, as stated before, be marked in the code as an international offence, and should foe denounced as such by the international tribunal. But even M'hen two: offending parties do not ask for a decision from the international tribunal, it is not proper that other nations should be deprived of the benefit of such a decision. If these decisions constitute a security against injustice from one another to the general community of nations, that security must not be allowed to be impaired by the refractory conduct of those who dread an investigation of their conduct. Certain forms, not difficult to devise, should be laid down, according to which, on the occurrence of such cases, the tribunal should proceed. First of all, it is evident, that the parties in question should receive inti- mation of the intention of the court to take cognisance of their disputes, on a certain day. If the p'^arties, one or both; appeared, the case would fall under one of those which have been previously as above considered. If neither party appeared, the court would proceed to estimate the facts which were within its cognisance. It would have before it one important article of evidence, furnished by the parties themselves, namely, the fact of their non-appearance. This oMght to be considered as going far to prove injurious conduct on both sides. The evidence which the court would have before it, to many spe-* cific facts, would be liable to be scanty, from the neglect of the parties to adduce their pleas and evidence. The business of the court, in these circumstances, would be, to state correctly such evidence, direct or cir- cumstantial, as it had before it; giving its full weight to the evidence con- tained in the fact of non-appearance ; and to pronounce the decision, which the balance of the evidence, such as it was, might be found to support. £ven in this case, in which the practical effect of a decision of the international court may be supposed to be the least, where neither party is disposed to respect the jurisdiction, the benefit which would be derived would by no means be inconsiderable. A decision solemnly pronounced by such a tribunal, would always have a strong effect upon tlie imaginations of men. It would fix, and concentrate the disappro- bation of mankind. 32 Such a tribunal would operate as a great school of political morality, By sifting the circumstances, in all the disputes of nations, by dittiii- gnisbing accurately between the false colours and the true, by stripping off all disguises, by getting at the real facts, and exhibiting them in the Ime point of view, by presenting all this to the world, and fixing the •ttention of mankind upon it by all the celebrity of its elevated situation, it would teach men at large to distinguish. By habit of contemplating the approbation of such a court attached to just proceeding, its disappro- bation to unjust ; men would learn to apply correctly their own appro< bation and disapprobation; whence would flow the various important effects, which these sentiments justly excited, would naturally and un- avoidably produce. As, for the reasons adduced at the beginning of this article, the inten- tion should never be entertained of supporting the decisions of the inter- national court by force of arms, it remains to be considered what means of another kind could be had recourse to, in order to raise to as high a pitch as possible the motive of nations respectively to yield obedience to its decisions. We have already spoken of the effect which would be produced, in pointing the sentiments of mankind, and giving strength to the moral sanc- tion, by the existence of an accurate code, and the decisions themselves of a well-constituted tribunal. To inciease this effect to the utmost, publicity should be carried to the highest practicable perfection. The code, of course, ought to be universally promulgated and known. Not only that, but the best means should be in full operation for diffusing a knowledge of the proceedings of the tribunal ; a knowledge of the cases investigated, the allegations made, the evidence adduced, the sentence pronounced, and the reasons upon which it is grounded. The book of the law of nations, and selections from the book of the trials before the international tribunal, should form a subject of study in every school, and a knowledge of them a necessary part of every man's education. In this manner a moral 'sentiment would grow up, which would, m time, act as a powerful restraining force upon the injustice of nations, and give a wonderful efficacy to the international jurisdiction. No nation would like to be the object of the contempt and hatred of all other nations ; to be spoken of by them on all occasions with disgust and indignation. On the other hand, there is no nation, which does not value highly the favourable sentiments of other nations ; which is not elevated and delighted with the knowledge that its justice, generosity, and magna- aimity, are the theme of general applause. When means are taken to make it certain that what affords a nation this high satisfaction will follow a just and beneficial course of conduct ; that what it re^rds with so flfiuch aversion, will infallibly happen to it, if it fails in tiie propriety of its own behaviour, we may be sure that a strong security is gained for a gqod intercourse among nations. Desides this, it does not seem impossible to find various incon< 33 veniencevy to wliich, by way of penalties, those nations might be sub- jected, which refuted to conform to the prescriptions of the international code. Various privileges granted to other nations, in their intercourse with one another, might be withheld from that nation which thus demeaned itself in a way so coiitiarv to the general interests. In so far as the withholding of these privileges might operate unfavourably -'^on indivi- duals belonging to the refractory nations, — individuals who m.^ it belittle, or not at all, uccesHary to the guilt, the effect would be the subject of proportiouiil regret. Many, however, in the concerns of mankind, are the good things w hich can only be attained with a certain accompaniment of evil. 'I'he rule of wisdom, in such cases, is, to make sure that the good outweighs the evil, and to reduce the evil to its narrowest dimensions. We may take an instance first from trivial matters. The ceremonial of other nations might be turned against the nation, which, in this com- mon concern, set itself in opposition to the interests of others. The lowest place in company, the least respectful situation on all occasions of ceremony, might be assigned to the members of that nation, when travelling or residing in other countries. Many of those marks of dis- respect, implying injury neither to person nor property, which are checked, by penaltieN in respect to others, might be free from penalties in respect to them. From these instances, adduced merely to illustrate our mean- ing, it will be easy to see in what manner a number of considerable in- conveniencies might, from this source, be made to bear upon nations I refusing to conform to the beneficial provisions of the international code. Besides the ceremonial of other nations, means to the same end might be derived from the law. A number of cases might be found in which certain benefits of the law, granted to other foreigners, might be refused to them. They might be denied the privilege of suing in the courts, for example, on account of any thing except some of the higher crimes, th more serious violations of person or property. Among other things it is sufficiently evident, that this tribunal woul be the proper organ for the trial of piracy. When preponderant incon- venience might attend the removing of the trial to the usual seat of the tribunal, it might delegate for that purpose the proper functionaiies to the proper spot. By the application of the principles, which we have thus expounded, an application which implies no peculiar difficulty, and requires nothing more than care in the detail, we are satisfied that all might be done which is capable of being done, toward securing the benefits of inter< national law. (F. F.) lous incoii' J, Innc", Printer, 61, Wells-street, Oxford-street, Londoii.