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 . if .-- 
 THE 
 
 LAW OF NATIONS; 
 
 PRINCIPLES OF THE LAW OF NATURE, 
 
 APPLIED TO 
 
 CONDUCT AND AFFAIRS 
 
 NATIONS AND SOTEEEIGNS. 
 
 FROM THE FRENCH 
 
 OP 
 
 MONSIEUR DE VATTEL. 
 
 Nihil est onim illi principi Deo qui omnem hunc mundum regit, quod quidem in terris fiat, accepting 
 quam concilia coetusque hominum jure sociati, qua mitates appellantur." CICERO, Sou. SCIP. 
 
 FROM THE NEW EDITION, 
 
 JOSEPH CHITTY, ESQ. 
 
 BARRISTER AT LAW. 
 
 WITH ADDITIONAL NOTES AND REFERENCES, 
 
 BY EDWAKD D. INGKAHAM, ESQ. 
 
 T. & J. W. JOHNSON, LAW BOOKSELLEKS, 
 
 v No. 197 CHESTNUT STREET. 
 
 ' V1853.
 
 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 THIS EDITION. 
 
 THE text of the present translation of Yattel has been care- 
 fully compared with that of the original work, in the first 
 v> edition which appeared, (Londres, 1758, 2 vol. in quarto,) pub- 
 lished at Neuchatel; in that of Amsterdam, (Van Harrevelt, 
 1775, 2 vol. in quarto,) the best known till recently; and in 
 that of M. de Hofmans, (Paris, 1839, 2 vol. in octavo,) the 
 last and best edition. Great care has been taken also in re- 
 % gard to the British decisions cited by the English editor. It 
 ^ was discovered, that many inaccuracies existed in the citations, 
 ^ v 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 ; 
 j care having been taken to distinguish the matter added by 
 
 J enclosing it in brackets. The editor regrets very much that 
 the size of the volume which would have been too much in- 
 creased by such an extension did not permit him to annex 
 to it the " Bibliographic choisie et systematique du Droit de la 
 Nature et des Gens, et ^u Droit Public," of M. de Ho/mans, 
 which is an excellent guide in the choice of Works upon a 
 subject much less attended to than js demanded by its im- 
 portance. 
 
 Philadelphia, Sept. 29, 1852. 
 
 iii
 
 ADVERTISEMENT 
 
 TO THE EDITION OF A. D. 1797. 
 
 AN undertaking this new edition of Monsieur De Vattel's trea- 
 tise, 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 eiforts, 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, 
 
 . . . Vcniam pro laude peto, laudatus abunde, 
 Non fastiditus si tibi, lector, ero. 
 
 THE EDITOR. 
 
 London, May 1, 1797.
 
 PKEFACE 
 
 TO THE PRESENT EDITION. 
 
 J. HE 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 im- 
 portance. But it is of infinitely more extended utility. It con- 
 tains a practical collection of ethics, principles, and rules of 
 conduct to be observed and pursued, as well by private indivi- 
 duals as by states, and these of the utmost practical importance 
 to the well-being, happiness, and ultimate and permanent ad- 
 vantage 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 posi- 
 tions of the author, moreover, have been so sensibly and clearly 
 supported and explained, and so happily illustrated by histo- 
 rical 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. 
 
 A2 V
 
 IV PREFACE TO THE PRESENT EDITION. 
 
 Many years have elapsed since the original work was pub- 
 lished, long before the invaluable decisions of Sir William 
 Scott, Sir C. Robinson, and Sir John Nichol, and other emi- 
 nent Judges in the Courts of Admiralty, and Prize and other 
 Courts ; and the last edition, upon which any care was be- 
 stowed, 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 au- 
 thors 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 exceed- 
 ingly 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, con- 
 sequently, 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. 
 
 J_ HE 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 conse- 
 quence 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 know- 
 ledge 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 knoAvledge 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.* 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" :"f 
 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 na- 
 
 * Neque vero hoc solnm naturS, id est, jure f Jus naturale est, quod natura omnia ani- 
 gentium, <tc. Cicero do Offic. lib. iii. c. 5. mtdia docuit Instit. lib. i. tit. 2.
 
 Till PREFACE. 
 
 tural reason has established among all mankind, and which is equally ob- 
 served by all people, is called the law of nations, as being law which all 
 nations follow.* In the succeeding paragraph, the emperor seems to ap- 
 proach 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."f 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. J 
 
 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 gene- 
 ral 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. " 
 
 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 
 
 * Quod quisquo populus ipse sibi jus con- turali juri contrariae. Jure enira natural! 
 
 gtituit, id ipsius proprium civitatis est, voca- omnea homines ab initio liberi nascebantur. 
 
 turque jus civile, quasi jus proprium ipsius Id. $ 2. 
 
 civitatis : quod vero naturalis ratio inter om- J Feciales, quod fidei publicae inter populos 
 
 nes homines constituit, id apud omnes per- prseerant: nam per hos fiebat ut justum con- 
 
 tcque custoditur, vocaturque jus gentium, qua- ciperetur helium (et inde desitum), et ut foe- 
 
 si quo jure omnes gentes utontur. Instil, lib. i. dere fides pacis constitueretur. Ex his mittc- 
 
 tit. ii. \ 1. bant, antequam conciperetur, qui res repete- 
 
 j- Jus autem gentium omni huinnno generi rent : et per hos etiam nunc fit foedus. Varro 
 
 commune est; nam usu exigente et humanis de Ling. Lat. lib. iv. 
 
 necessitatibus, gentes humanae jura quaedam $ De Jure Belli ct Pads, translated by Bar- 
 
 sibi constituerunt. Bella etenim orta sunt, et beyrac : Preliminary Discourse, | 4.1. 
 captivitates secutae et servitutes, qua sunt na-
 
 PKEPACE. IX 
 
 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 his time, it is not surprising that, having his mind burthened 
 with an immense variety of objects,and with a numberless train of quo- 
 tations, which formed a part of his plan, he could not always acquire 
 those distinct ideas so necessary in the sciences. Persuaded that na- 
 tions, or sovereign powers, are subject to the authority of the law of na- 
 ture, 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 na- 
 tions, it is not sufficient simply to apply to nations what the law of na- 
 ture 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, con- 
 sidered that the law must be applied to these new subjects in a manner 
 suitable to their nature, that judicious author would easily have disco- 
 vered that the natural law of nations is a particular science; that it 
 produces between nations even an external obligation wholly indepen- 
 dent of their will ; and that the common consent of mankind is only 
 the foundation and source of a particular kind of law, called the Ar- 
 bitrary Law of Nations. 
 
 Hobbes, in whose work we discover the hand of a master, notwithstand- 
 ing 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."* 
 This author has well observed, that the law of nations is the law of na- 
 ture 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 
 
 * Rursus (lex ) naturalis dividi potest in prietates hominum personales, lex quam, lo- 
 
 naturalem hominum, quae sola obtinuit dici quentes de hominum singulorum officio, wa- 
 
 Lex Nature, et naturalem civitatum, quse dici turalem dicimus, applicata totis civitatibus, na- 
 
 p'otest Lex Gentium, vulgo autem Jus Gentium tionibus, sive gentibus, vocatur Jus Gentium, 
 
 appellatur. Prsecepta utriusque eadem sunt: De Give, c. xiv. 4. 
 sed quia civitates semel institute induunt pro-
 
 X PREFACE. 
 
 he concluded that the maxims of the law of nature and those of the 
 law of nations are precisely the same. 
 
 Puffendorf declares that he unreservedly subscribes to this opinion 
 espoused by Hobbes.* 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 Puffendorf, 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 reader's convenience, transcribe one of that learned 
 translator's notes on Grotius's Law of War and Peace.f " I acknow- 
 ledge," 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 pro- 
 priety. But, setting aside the consideration that the consent of man- 
 kind 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 Budseus's method, 
 saying, " It was right in that author to point out,J 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 per- 
 mitted or required that he should do this." Here Barbeyrac made one 
 step, at least, in the right track : but it required more profound reflec- 
 tion, and more extensive views, in order to conceive the idea of a sys- 
 tem of natural law of nations, which should claim the obedience of 
 states and sovereigns, to perceive the utility of such a work, and espe- 
 cially to be the first to execute it. 
 
 This glory was reserved for the Baron de Wolf. That great philoso- 
 pher saw that the law of nature could not, with such modifications as 
 the nature of the subjects required, and with sufficient precision, clear- 
 ness, and solidity, be applied to incorporated nations, or states, without 
 the assistance of those general principles and leading ideas by which 
 
 * Puffendorf s Law of Nature and Nations, $ Note 2 on Puffendorf 's Law of Nature 
 
 book ii. chap. iii. $ 23. and Nations, book ii. chap. 3, $ 23. I have 
 
 f Book i. chap. i. 14, note 3. not been able to procure Budaeus's work, 
 
 j In his Elementa Philos. Pract. from which I suspect that Barbeyrac derived 
 
 this idea of the Law of Nations.
 
 PREFACE. XI 
 
 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 na- 
 tions :* 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 Pre- 
 face. 
 
 " Nations, "f 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 
 tho&e who entertain this idea have not sufficiently studied the subject. 
 Nations, it is true, can only be considered as so many individual per- 
 sons 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, pro- 
 ceed 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, there- 
 fore, 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 sub- 
 jects of the obligations and rights resulting, in virtue of the law of na- 
 ture, 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 ap- 
 plication, necessarily undergo a change suitable to the new subjects 
 to which they are applied. Thus, we see that the law of nations does 
 
 * If it were not more advisable for the founded on the nature of man, so the natural 
 sake of brevity, of avoiding repetitions, and law of nations is the natural law of political 
 taking advantage of the ideas already formed societies, and founded on the nature of 
 and established in the minds of men, if, those societies. But as the result of either 
 for all these reasons, it were not more conve- mode is ultimately the same, I have, in prefer- 
 ment to presuppose, in this instance, a know- ence, adopted the more compendious one. 
 ledge of the ordinary law of nature, and on As the law of nature has already been treated 
 that ground to undertake the task of applying of in an ample and satisfactory manner, the 
 it, to sovereign states, it would, instead of shortest way is simply to make a rational 
 speaking of such application, be more accurate application of it to nations. 
 to say, that, as the law of nature, properly so t A nation here means a sovereign state, 
 called, is the natural law of individuals and an independent political society.
 
 Xii PREFACE. 
 
 not, in every particular, remain the same as the law of nature, regu- 
 lating the actions of individuals. Why may it not, therefore, be sepa- 
 rately 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 stu- 
 died 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 indepen- 
 dent 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 incom- 
 plete. 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 con- 
 tents 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 worthy 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 ma- 
 terials 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 acknow- 
 ledge 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
 
 PREFACE. XlU 
 
 here quote a few instances. Monsieur Wolf, influenced, perhaps, by 
 the example of numerous other writers, has devoted several sections* 
 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 im- 
 pressions 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 law- 
 ful 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 
 oe 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 maximce) 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 capa- 
 ble of affording sufficiently solid grounds on which to build the rules of 
 the universal law of nations, which shall necessarily claim the obedient 
 acquiescence of sovereign states. I acknowledge no other natural so- 
 ciety 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 re- 
 fuse to obey. Nothing of this kind can be conceived or supposed to 
 subsist between nations. Each sovereign state claims, and actually pos- 
 sesses an absolute independence on all the others. They are all, accord- 
 ing to Monsieur Wolf himself, to be considered as so many individuals 
 who live together in the state 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 the 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 parti- 
 cular obligation to unite in civil society, properly so called : and if they 
 all obeyed the injunctions of that good parent, their subjection to the 
 restraints of civil society would be unnecessary. It is tfue, 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 re- 
 course to a political association, as the only adequate remedy against 
 te depravity of the majority the only means of securing the condition 
 
 * In the Vlllth part of his Law of Nature, and in his Law of Nations. 
 B
 
 XIV PREFACE. 
 
 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. Indivi- 
 duals 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 ihem have united under the 
 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 dif- 
 ficult or important occasions, arrangements are made and regulations 
 established by means of treaties. To this we may add, that independ- 
 ence 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 esta- 
 lished 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 volun- 
 tary 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 safety, from the nature of their mutual correspondence, 
 their reciprocal duties, and the distinctions of their various rights, in- 
 ternal 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 conse- 
 quence of the natural liberty of mankind, must be admitted in ques- 
 tions of external right, do not cancel the obligation which the internal 
 right imposes on the conscience of each individual. It is easy to apply
 
 PREFACE. XT 
 
 this doctrine to nations, and, by carefully drawing the line of distinc- 
 tion between the internal and external right between the necessary 
 and the voluntary law of nations to teach them not to indulge them- 
 selves 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, inter- 
 nal, 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 mo- 
 ther 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 demon- 
 stration, and will constitute the principal subject of this work. 
 
 There is another kind of law of nations, which authors call arbi- 
 trary, 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 conven- 
 tional 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 usage 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 1;he conventional law ; both the one and the other derive all tb.eir obli- 
 gatory 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 trea- 
 ties 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
 
 Xvi PREFACE. 
 
 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 iny readers are already, to a certain degree at least, possessed of 
 that knowledge. Nevertheless, as it is not agreeable to readers in ge- 
 neral 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 demonstra- 
 tion, 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 con- 
 sequence 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 states, if all 
 those who are employed in public affairs, condescended to apply seri- 
 ously 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 mo- 
 mentous 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 indi- 
 viduals, that the best and safest policy is that which is founded on 
 virtue. Cicero, as great a master in the art of government as in elo- 
 quence and philosophy, does not content himself with rejecting the vul- 
 gar maxim, that "a state cannot be happily governed without commit- 
 ting 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 ad- 
 vantageously administered."* 
 
 Providence occasionally bestows on the world kings and ministers 
 whose minds are impressed with this great trlith. Let us not renounce 
 
 * Nihil est quod adhuc de republic^ putem injuril non posse ; sed hoc verissimnm, sine 
 dictum, et quo possim longius progrcdi, nisi sit snmma justitia rempublicam regi non posse, 
 confirmatum, non modo falsum esse istud, sine Cicero, Fragment ex lib. de Republica.
 
 PREFACE. XV11 
 
 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 conform- 
 able 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 snowing, from some striking passage of history, how amiable 
 it is, how worthy of our homage in some truly great men, and even pro- 
 ductive of solid advantage. I have quoted the chief part of my exam- 
 ples from modern history, as well because these are more interesting, 
 as to avoid a repetition of those which have been already accumulated 
 by Grotius, Puffendorf, 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. But 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 con- 
 scious 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. 
 
 B2
 
 CONTENTS 
 
 PRELIMINARIES. 
 
 Idea and General Principles of the Law of Nations. 
 
 Sect. Page 
 
 1 WHAT is meant by a nation or state . .-> ; -i- >,. ^ . j v 
 
 2 It is a moral person ...... ib. 
 
 3 Definition of the law of nations . . . . . ib. 
 
 4 In what light nations or states are to be considered . . Ivi 
 
 5 To what laws nations are subject . . . . . ib. 
 
 6 In what the law of nations originally consists '."" . . ib. 
 
 7 Definition of the necessary law of nations . .. . .' . Iviii 
 
 8 It is immutable . . . . . ib. 
 
 9 Nations can make no change in it, nor dispense with the obligations 
 
 arising from it . . . . ^ '" ' . ib. 
 
 10 Society established by nature between all mankind . . . lix 
 
 11 And between all nations ...... Ix 
 
 12 The object of this society of nations . . . . bd 
 
 13 General obligation imposed by it . . ' . ib. 
 
 14 Explanation of this observation . . . . . ib. 
 
 15 The second general law is the liberty and independence of nations Ixii 
 
 16 Effect of that liberty . . . ..'"''. & 
 
 17 Distinctions between internal and external, perfect and imperfect obli- 
 
 gations and rights .'.'! . . . . ib. 
 
 18 Equality of nations .' ." *t : T 1 " .* . Ixiii 
 
 19 Effect of that equality . . . . . . ib. 
 
 20 Each nation is mistress of her own actions, when they do not affect 
 
 the perfect rights of others . . . . . ib. 
 
 21 Foundation of the voluntary law of nations . . -.'^ ?' ' ib. 
 
 22 Right of nations against the infractors of the law of nations . . Ixiv 
 
 23 Measure of that right . . ; '.- . ib 
 
 24 Conventional law of nations, or law of treaties . . . Ix 1 ! 
 
 25 Customary law of nations r .. . . . . ib 
 
 2*6 General rule respecting that law . . . . . ib 
 
 27 Positive law of nations ...... IxV. 
 
 28 General maxim respecting the use of the necessary and the voluntary 
 
 law . . . . . . . . ' ib. 
 
 xix
 
 XX CONTENTS. 
 
 BOOK I. 
 
 OF NATIONS CONSIDERED IN THEMSELVES. 
 
 CHAP. I. 
 Of Nations or Sovereign States. 
 
 Sect. Page 
 
 1 Of the state, and of sovereignty .' ... 1 
 
 2 Authority of the body politic over the members . . ib. 
 
 3 Of the several kinds of government . ... . .2 
 
 4 What are sovereign states . . . . ib. 
 
 5 States bound by unequal alliance . . ' . . ib. 
 
 6 or by treaties of protection . . . . ib. 
 
 7 Tributary states ....... 3 
 
 8 Feudatory states .....% ib. 
 
 9 Two states subject to the same prince . . . . ib. 
 
 10 States forming a federal republic . . ..." ib. 
 
 11 A state that has passed under the dominion of another . . ib. 
 
 12 Objects of this treatise ...... 4 
 
 CHAP. II. 
 
 General Principles of the Duties of a Nation towards herself. 
 
 13 A nation ought to act agreeably to her nature . . .4 
 
 14 Preservation and perfection of a nation .... ib. 
 
 15 End of civil society . . . .5 
 
 16 A nation is under an obligation to preserve herself . . ib. 
 
 17 and to preserve her members .... ib. 
 
 18 A nation has a right to every thing necessary for her preservation 6 
 
 19 She ought to avoid every thing that might occasion her destruction . ib. 
 
 20 Her right to every thing that may promote this end . . ib. 
 
 21 A nation ought to perfect herself and her condition . . . ib. 
 
 22 and to avoid every thing contrary to her perfection . 7 
 
 23 The right she derives from these obligations . . . ib. 
 
 24 Examples . . . . . . ib. 
 
 25 A nation ought to know herself . . . . .8 
 
 CHAP. HI. 
 
 Of the Constitution of a State, and the Duties and Rights of a Nation 
 in that respect. 
 
 26 Of the public authority . . .''. . ; . 8 
 
 27 What is the constitution of a state . . v . ib. 
 
 28 The nation ought to choose the best constitution . . .9 
 
 29 Political, fundamental, and civil laws . . f " . ib. 
 
 30 Support of the constitution, and obedience to the laws . . ib. 
 
 31 Right of a nation with respect to her constitution and government 10
 
 CONTENTS. XXI 
 
 Sect. Page 
 
 32 She may reform the government . . . . .10 
 
 33 and may alter the constitution . . . ib. 
 
 34 Of the legislative power, and whether it can alter the constitution . 11 
 
 35 The nation ought not to attempt it without great caution . 12 
 
 36 She is the judge of all disputes relative to the government . . ib. 
 
 37 No foreign power has a right to interfere . . . ib. 
 
 CHAP. IV. 
 
 Of the Sovereign, his Obligations, and his Rights. 
 
 38 Of the sovereign . . . . . . .12 
 
 39 He is solely established for the safety and advantage of society . 13 
 
 40 His representative character . . . . .14 
 
 41 He is intrusted with the obligations of the nation, and invested with 
 
 her rights . . . . . . ib. 
 
 42 His duty with respect to the preservation and perfection of the nation ib. 
 
 43 His rights in that respect . . . ~. ** . ib. 
 
 44 He ought to know the nation . . t ^ > 15 
 
 45 Extent of his power : prerogatives of majesty . . . ib. 
 
 46 The prince is bound to respect and support the fundamental laws ib. 
 
 47 He may change the laws not fundamental . . ^ ' . .16 
 
 48 He is bound to maintain and observe the existing laws . . ib. 
 
 49 In what sense he is subject to the laws .... ib. 
 
 50 His person is sacred and inviolable . . . .17 
 
 51 But the nation may repress a tyrant, and renounce her allegiance to him ib. 
 
 52 Arbitration between the king and his subjects ... 20 
 
 53 Obedience which subjects owe to a sovereign . ; -4,, . 21 
 
 54 In what cases they may resist him . . ib. 
 
 55 Ministers . 23 
 
 CHAP. V. 
 
 Of States, Elective, Siiccessive, or Hereditary, and of those called Patrimonial. 
 
 56 Elective states . . . . . .23 
 
 57 Whether elective kings be real sovereigns ... 24 
 
 58 Successive and hereditary states : origin of the right of succession . ib. 
 
 59 Other origin of that right . . . . . ib. 
 
 60 Other sources, which still amount to the same thing . . 24 
 
 61 A nation may change the order of the succession . . ib. 
 
 62 Kenunciations ..... ;.'. " * . 25 
 
 63 The order of succession ought commonly to be observed . . 26 
 
 64 Regents ... .... 27 
 
 65 Indivisibility of sovereignties . . . . . ib. 
 
 66 Who are to decide disputes respecting the succession to a sovereignty ib. 
 
 67 The right of succession not to depend on the judgment of a foreign 
 
 power . . . . . . . .29 
 
 68 States called patrimonial ..... 30 
 
 69 Every true sovereignty is unalienable . . . .31 
 
 70 Duty of a prince who is empowered to nominate his successor . 32 
 
 71 His nomination must be sanctioned by at least the tacit ratification of 
 
 the people ....... ib.
 
 XX11 CONTENTS. 
 
 CHAP. VI. 
 
 Principal Objects of a good Government; and first, to provide for the Neces- 
 sities of the Nation. 
 
 Sect. Pag 
 
 72 The object of society points out the duties of the sovereign : he is 
 
 bound to procure plenty . . . . . .33 
 
 73 to take care that there be a sufficient number of workmen ib. 
 
 74 to prevent the emigration of those that are useful . ib. 
 
 75 Emissaries who entice them away . . . 34 
 
 76 Labour and industry must be encouraged . . ^. . ib. 
 
 CHAP. VII, 
 
 Of the Cultivation of the Soil. 
 
 77 Utility of Agriculture . . . . . .34 
 
 78 Regulations necessary in that respect : for the distribution of land ib. 
 
 79 for the protection of husbandmen . . . ..35 
 
 80 Husbandry ought to be placed in an honourable light . . ib. 
 
 81 Cultivation of the soil a natural obligation .... ib. 
 
 82 Public granaries ...... 36 
 
 CHAP. VIII. 
 
 Of Commerce. 
 
 83 Domestic and foreign trade . . . . . .37 
 
 84 Utility of domestic trade . . . . . ib. 
 
 85 Utility of foreign trade . . . . . . ib. 
 
 86 Obligation to cultivate domestic trade . . . . ib. 
 
 87 Obligation to carry on foreign trade . . . .38 
 
 88 Foundation of the laws of commerce : right of purchasing . ib. 
 
 89 Right of selling . . . . . . . ib. 
 
 90 Prohibition of foreign merchandises . . . ^ , , 39 
 
 91 Nature of the right of purchasing . . . . ib. 
 
 92 Each nation to determine for herself how she will carry on commerce ib. 
 
 93 How a nation acquires a perfect right to a foreign trade . . 40 
 
 94 Simple permission to carry on trade .... ib. 
 
 95 Whether commercial rights be subject to prescription . . ib. 
 
 96 Imprescriptibility of rights founded on treaty ... 41 
 
 97 Monopolies, and trading companies with exclusive privileges . 42 
 
 98 Balance of trade, and attention of government in that respect . 43 
 
 99 Import duties . . . . . . . ib. 
 
 CHAP. IX. 
 Of the Care of the Public Ways; and of Tolls. 
 
 100 Utility of highways, canals, &c. . . . . .43 
 
 101 Duty of government in that respect . . ..;., . ib. 
 
 102 Its right in that respect . . . . ',, . ,. . 44 
 
 103 Foundation of the right to demand toll t*j . . . . . ib. 
 
 104 Abuse of that right ., . ., '.. . . ib.
 
 CONTENTS. Xxiil 
 
 CHAP. X. 
 
 Of Money and Exchange. 
 
 Sect. Page 
 
 105 Establishment of money . . . . . .45 
 
 106 Duty of the nation or prince with respect to the coin . . ib. 
 
 107 Their rights in that respect . . . . .46 
 
 108 How one nation may injure another in the article of coin -< . 47 
 
 109 Exchange, and commercial laws . . . . ib. 
 
 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 . . 47 
 
 111 Instruction . . . . . . i >, ib. 
 
 112 Education of youth . . <*nii#. . . .48 
 
 113 Arts and sciences ...... ib. 
 
 114 Freedom of philosophical discussion . . . .49 
 
 115 Love of virtue, and abhorrence of vice, to be excited . . 51 
 
 116 The nation may hence discover the intention of her rulers . ib. 
 
 117 The nation, or public'person, bound to perfect her understanding and will 52 
 
 118 and to direct the knowledge and virtues of the citizens to 
 
 the welfare of the society . . -. -? 52 
 
 119 Love for their country . . . . . .53 
 
 120 in individuals . . . . . ib. 
 
 121 in the nation or state itself, and in the sovereign . ib. 
 
 122 Definition of the term " country" .... ib. 
 
 123 How shameful and criminal to injure our country . . 54 
 
 124 The glory of good citizens : Examples . . ' . '. ib. 
 
 CHAP. XII. 
 
 Of Piety and Religion. 
 
 125 Piety 55 
 
 126 It ought to be attended with knowledge . . . ib. 
 
 127 Religion, internal and external . ' ' . - ., / . .56 
 
 128 Rights of individuals : liberty of conscience . . . ib. 
 
 129 Public establishment of religion : rights and duties of the nation ib. 
 130 when there is as yet no established religion . 57 
 
 131 when there is an established religion . s .' '" . ib. 
 
 132 Duties and rights of the sovereign with respect to religion v 58 
 
 133 where there is an established religion . : ' V ' . 59 
 
 134 Objects of his care, and the means he ought to employ . 60 
 
 135 Toleration . . . . . . . ib. 
 
 136 How the prince is to act when the nation is resolved to change her 
 
 religion . . . . . . . ib. 
 
 137 Difference of religion does not deprive a prince of his crown . 61 
 
 138 Duties and rights of the sovereign reconciled with those of the subjects ib. 
 
 139 The sovereign ought to have the inspection of the affairs of religion, 
 
 and authority over those who teach it . . .62 
 
 140 He is bound to prevent the abuse of the established religion . 63 
 
 141 His authority over the ministers of religion . . . ib.
 
 CONTENTS. 
 
 Sect. Page 
 
 142 Nature of that authority . . . , . .64 
 
 143 Rule to be observed with respect to ecclesiastics . . ib. 
 
 144 Recapitulation of the reasons which establish the sovereign's rights in 
 
 matters of religion, ib. Authorities and examples . . 65 
 
 145 Pernicious consequences of the contrary opinion . . . ib. 
 
 146 Abuses particularized. 1. The power of the popes . . 66 
 
 147 2. Important employments conferred by a foreign power . 68 
 
 148 3. Powerful subjects dependent on a foreign court . ib. 
 
 149 4. Celibacy of the priests : Convents . . .69 
 
 150 5. Enormous pretensions of the clergy : Pre-eminence . 70 
 
 151 6. Independence, immunities . . ., , . .71 
 
 152 7. Immunity of church possessions ; , . . .. 72 
 
 153 8. Excommunication of men in office . . .73 
 
 154 9. and of sovereigns themselves ... 74 
 
 155 10. The clergy drawing every thing to themselves, and inter- 
 
 rupting the course of justice . . . 75 
 
 156 11. Money drawn to Rome . . . . .76 
 
 157 12. Laws and customs inimical to the welfare of states . ib. 
 
 CHAP. XIII. 
 
 Of Justice and Polity. 
 
 158 A nation is bound to make justice flourish . . .77 
 
 159 to establish good laws .... ib. 
 
 160 to enforce them . . . . .78 
 
 161 Functions and duties of the prince in that respect . . ib. 
 
 162 How he is to dispense justice . . . . . ib. 
 
 163 His duty to appoint upright and enlightened judges . . ib 
 
 164 The ordinary courts should determine causes relating to the revenue 79 
 
 165 Necessary to establish supreme courts, from whose sentence there shall 
 
 be no appeal . . . . . . ib. 
 
 166 The prince bound to observe the forms of justice . . 80 
 
 167 to support the authority of the judges, and enforce their 
 
 decrees ....... ib. 
 
 168 Distributive justice : distribution of employments and rewards . ib. 
 
 169 Punishment of transgressors : foundation of the right of punishing 81 
 
 170 Criminal laws . . . . . . . ib. 
 
 171 Degree of punishment ..... 82 
 
 172 Execution of the laws . . . . . . ib. 
 
 173 Right of pardoning ...... 83 
 
 174 Internal police . . . . . . ib. 
 
 175 Duel or single combat . . . . .84 
 
 176 Means of putting a stop to that disorder .... ib. 
 
 CHAP. XIV. 
 
 Third Object of a good Government, to fortify itsdj 'against External Attacks. 
 
 177 A nation ought to fortify herself against external attacks . . 87 
 
 178 National strength . . . . . ib. 
 
 179 Increase of population . . . . . . ib. 
 
 180 Valour 88 
 
 181 Other military virtues . . . . . .89
 
 CONTENTS. XXV 
 
 Sect. Page 
 
 182 Riches . 89 
 
 183 Public revenues and taxes 90 
 
 184 The nation ought not to increase her power by unlawful means . ib. 
 
 185 Power is but relative ...... ib. 
 
 CHAP. XV. 
 
 Of the Glory of a Nation. 
 
 186 Advantages of glory . . . . . .91 
 
 187 Duty of the nation. How true glory is acquired . . ib. 
 
 188 Duty of the prince . . . . . . ib. 
 
 189 Duty of the citizens . . . , ; 92 
 
 190 Example of the Swiss . . . . . .16. 
 
 191 Attacking the glory of a nation is doing her an injury . . 93 
 
 CHAP. XVI. 
 
 Protection sought by a Nation, and her voluntary submission to a Foreign Power. 
 
 192 Protection . . . . . . .93 
 
 193 Voluntary submission of one nation to another . . 94 
 
 194 Several kinds of submission . . . . . ib. 
 
 195 Right of the citizens when the nation submits to a foreign power ib. 
 
 196 These compacts annulled by the failure of protection . . 95 
 
 197 or by the infidelity of the party protected . . ib. 
 
 198 and by the encroachments of the protector . . ib. 
 
 199 How the right of the nation protected is lost by her silence . 96 
 
 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 preceding chapter 96 
 
 201 Duty of the members of a state, or subjects of a prince, who are in 
 
 danger . . . . . . . .97 
 
 202 Their right when they are abandoned .... ib. 
 
 CHAP. xvm. 
 
 Establishment of a Nation in a Country. 
 
 203 Possession of a country by a nation . . . .98 
 
 204 Her right over the part in her possession . . . ib. 
 
 205 Acquisition of the sovereignty in a vacant country . . 99 
 
 206 Another manner of acquiring the empire in a free country . ib. 
 
 207 How a nation acquires the property of a desert country . . ib. 
 
 208 A question on this subject . . . . ib. 
 
 209 Whether it be lawful to take possession of part of a country inhabited 
 
 only by a few wandering tribes . . . . 100 
 
 210 Colonies 101 
 
 4 C
 
 XXVI CONTENTS. 
 
 CHAP. XIX. 
 
 Of our Native Country, and various Matters relating to it. 
 
 Sect. Pxge 
 
 211 What is our country . . . . . .101 
 
 212 Citizens and natives ...... ib. 
 
 213 Inhabitants . . . . . . .102 
 
 214 Naturalization . . . ,, . . . ib. 
 
 215 Citizens' children born in a foreign country . . . ib. 
 
 216 Children born at sea . . . . . . ib. 
 
 217 Children born in the armies of the state, or in the house of its minister 
 
 at a foreign court ...... 103 
 
 218 Settlement . . . . . . . ib. 
 
 219 Vagrants ....... ib. 
 
 220 .Whether a person may quit his country .... ib. 
 
 221 How a person may absent himself for a time . . .105 
 
 222 Variation of the political laws in that respect : they must be obeyed ib. 
 
 223 Cases in which a citizen has a right to quit his country . . ib 
 
 224 Emigrants . . . ... , . 106 
 
 225 Sources of their right . . . . ... ib. 
 
 226 If the sovereign infringes their right, he injures them . . 107 
 
 227 Supplicants ...... L ib. 
 
 228 Exile and banishment . . . . . . ib. 
 
 229 The exile and the banished man have a right to live somewhere 108 
 
 230 Nature of that right . . . . . . ib. 
 
 231 Duty of nations towards them . . . ib. 
 
 232 A nation cannot punish them for faults committed out of her territories 109 
 233 except such as affect the common safety of mankind . ib. 
 
 CHAP. XX. 
 
 Public, Common, and Private Property. 
 
 234 What the Komans called res communes . . .... 109 
 
 235 Aggregate wealth of a nation, and its divisions . . ib. 
 
 236 Two modes of acquiring public property . . . .110 
 
 237 The income of the public property is naturally at the sovereign's dis- 
 
 posal ....... ib. 
 
 238 The nation may grant him the use and property of her common pos- 
 
 sessions ...... . ib. 
 
 239 or allow him the domain, and reserve to herself the use of 
 
 them . . . .... ib. 
 
 240 Taxes Ill 
 
 241 The nation may reserve to herself the right of imposing them . ib. 
 
 242 Sovereign possessing that power . . . . . ib. 
 
 243 Duties of the prince with respect to taxes . , . 112 
 
 244 Eminent domain annexed to the sovereignty . * . . ib. 
 
 245 Dominion over public property . . . Tyf--' - . 113 
 
 246 -The sovereign may make laws respecting the use of things possessed 
 
 in common . . . . . . ib. 
 
 247 Alienation of the property of a corporation . --..-. . ib. 
 
 248 Use of common property . . . ./*.' . 114 
 
 249 How each member is to enjoy it . . . . ib. 
 
 250 Eight of anticipation in the use of it . '- "'.' '* . . ib. 
 
 251 The same right in another case -V . . . ib.
 
 CONTENTS. XXV11 
 
 Sect. Page 
 
 252 Preservation and repairs of common possessions . . . 115 
 
 253 Duty and right of the sovereign in that respect . ib. 
 
 254 Private property . . . . , . ib. 
 
 255 The sovereign may subject it to regulations of police . . ib. 
 
 256 Inheritances . . ... .116 
 
 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 her public property . ' . . 116 
 
 258 Duties of the nation in that respect .... ib. 
 
 259 Duties of the prince . ; . . . . 117 
 
 260 He cannot alienate the public property . ^ . . ib. 
 
 261 The nation may give him a right to do it . . . . ib. 
 
 262 Rules on that subject with respect to treaties between nation and nation ib. 
 
 263 Alienation of a part of the state : ". . . . . 118 
 
 264 Rights of the dismembered party .... ib. 
 
 265 Whether the prince has power to dismember the state . .119 
 
 CHAP. XXII. 
 
 Of Rivers, Streams, and Lakes. 
 
 266 A river that separates two territories .... 120 
 
 267 Bed of a river which is dried up or takes another course . 121 
 
 268 Right of alluvion . . . . ib. 
 
 269 Whether alluvion produces any change in the right to a river . ib. 
 
 270 Consequence of a river changing its bed . ..<-,-. *i - . 122 
 
 271 Works tending to turn the current . . . . . A ib. 
 
 272 or generally prejudicial to the rights of others . . ib. 
 
 273 Rules relative to interfering rights . . *.; . ib. 
 
 274 Lakes . >, .. .. ww < . . 123 
 
 275 Increase of a lake . . :*<: - ',* ;,* . ib. 
 
 276 Land formed on the banks of a lake . .. ; .,.-: . .- . 125 
 
 277 Bed of a lake dried up . -.- 4 ,? > . ..,.,*.,. ib. 
 
 278 Jurisdiction over lakes and rivers .... ib. 
 
 CHAP. XXIII. 
 
 Of the Sea. 
 
 279 The sea, and its use . . . . . . 125 
 
 280 Whether the sea can be possessed, and its dominion appropriated ib. 
 
 281 Nobody has a right to appropriate to himself the use of the open sea ib. 
 
 282 A nation attempting to exclude another does her an injury . 126 
 
 283 She even does an injury to all nations .... ib. 
 
 284 She may acquire an exclusive right by treaties . . ib. 
 
 285 but not by prescription and long use . . . 127 
 
 286 unless by virtue of a tacit agreement . . ib. 
 
 287 The sea near the coasts may become property . . . ib.
 
 XXviii CONTENTS. 
 
 Sect. Page 
 
 288 Another reason for appropriating the sea bordering on the coasts . 128 
 
 289 How far that possession may extend .... ib. 
 
 290 Shores and ports . . . 129 
 
 291 Bays and straits . . . j , ' . ib. 
 
 292 Straits in particular . . . . . .130 
 
 293 Right to wrecks . . . . . ib. 
 
 294 A sea inclosed within the territories of a nation . . . ib. 
 
 295 The parts of the sea possessed by a sovereign are within his jurisdiction 131 
 
 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 . . 133 
 
 2 Offices of humanity, and their foundation . . . 134 
 
 3 General principles of all the mutual duties of nations . . 135 
 
 4 Duties of a nation for the preservation of others . . ib. 
 
 5 She is bound to assist a nation afflicted with famine or any other 
 
 calamity ....... 136 
 
 6 She is bound to contribute" to the perfection of other states . . ib. 
 
 7 but not by force ..... 137 
 
 8 The right to require the offices of humanity . . . 138 
 
 9 The right of judging whether they are to be granted . . ib. 
 
 10 A nation is not to compel another to perform those offices of which the 
 
 refusal is no wrong ...... ib. 
 
 11 Mutual love of nations . . . ib. 
 
 12 Each nation is bound to cultivate the friendship of others . ib. 
 
 13 to perfect herself, with the view to the advantage of others, 
 
 and to set them good examples .... 139 
 
 14 to take care of their glory .... ib. 
 
 15 Difference of religion ought not to preclude the offices of humanity ib. 
 
 16 Rule and measure of the offices of humanity . . . 140 
 
 17 Particular limitation with respect to the prince . \ . . 141 
 
 18 No nation ought to injure others . ...,.' . . ib. 
 
 19 Offences . . . . .... ^ . 142 
 
 20 Bad custom of the ancients . . . . , - ; . 143 
 
 CHAP. II. 
 
 Of the Mutual Commerce between Nations. 
 
 21 General obligation of nations to carry on mutual commerce . 143 
 
 22 They are bound to favour trade . . ' . . 144 
 
 23 Freedom of trade ... . ib.
 
 CONTENTS. 
 
 Sect. Pane 
 
 24 Right of trading belonging to nations .... 144 
 
 25 Each nation is sole judge of the propriety of commerce on her own part ib. 
 
 26 Necessity of commercial treaties *. . . . 145 
 
 27 General rule concerning those treaties . . . . ib. 
 
 28 Duty of nations in making such treaties . . . ib. 
 
 29 Perpetual or temporary treaties, or treaties revocable at pleasure ib. 
 
 30 Nothing contrary to the tenor of a treaty can be granted to a third party 146 
 
 31 How far lawful to give up by treaty the liberty of trading with other 
 
 nations . . . . . . . ib. 
 
 32 A nation may restrict her commerce in favour of another nation . ib. 
 
 33 A nation may appropriate to herself a particular branch of trade . 147 
 
 34 Consuls . ... ib. 
 
 CHAP. m. 
 
 Of the Dignity and Equality of Nations, of Titles, and other Marks 
 of Honour. 
 
 35 Dignity of nations or sovereign states .... 149 
 
 36 Their equality . . . '*?"7 . . . ib. 
 
 37 Precedency >-v '/. . . . , r . ,,- ,, ;1 -*.v,, J ib. 
 
 38 The form of government is foreign to this question . . 150 
 
 39 A state ought to retain her rank, notwithstanding any changes in the 
 
 form of her government . . . . ib. 
 
 40 Treaties and established customs are to be observed in that respect ib. 
 
 41 Name and honours given by the nation to her conductor . . 151 
 
 42 Whether a sovereign may assume what title and honours he pleases 152 
 
 43 Right of other nations in that respect . . . . . ib. 
 
 44 Their duty ....... ib. 
 
 45 How titles and honours may be secured . . " . . 153 
 
 46 We must conform to general custom .... ib. 
 
 47 Mutual respect due by sovereigns to each other . . . ib. 
 
 48 How a sovereign ought to maintain his dignity ^ . . 154 
 
 CHAP. IV. 
 
 Of the Right to Security, and the Effects of the Sovereignty and Independence 
 of Nations. 
 
 49 Right to security . . . . . . .154 
 
 50 It produces the right of resistance ^ . . -re . ib. 
 
 51 and that of obtaining reparation . . . - . 155 
 
 52 and the right of punishing ~f ** . . . ib. 
 
 53 Right of all nations against a mischievous people . . . ib. 
 
 54 No nation has a right to interfere in the government of another state ib. 
 
 55 One sovereign cannot make himself judge of the conduct of another ib. 
 
 56 How far lawful to interfere in a quarrel between a sovereign and his 
 
 subjects ....... 156 
 
 57 Right of opposing the interference of foreign powers in the affairs of 
 
 - government . . . . . . .157 
 
 58 The same right with respect to religion .... ib. 
 
 59 No nation can be constrained in religious concerns . . 158 
 
 60 Offices of humanity in these matters : missionaries . ib, 
 
 c2
 
 CONTENTS. 
 
 Sect. Page 
 
 61 Circumspection to be used . . . . . 159 
 
 62 What a sovereign may do in favour of those who profess his religion 
 
 in another state . . ib. 
 
 CHAP. V. 
 
 Of the Observance of Justice between Nations. 
 
 63 Necessity of the observance of justice in human society . . 160 
 
 64 Obligation of all nations to cultivate and observe justice . ib. 
 
 65 Right of refusing to submit to injustice .... ib. 
 
 66 This right is a perfect one . . 161 
 
 67 It produces the right of self-defence .... ib. 
 
 68 the right of doing ourselves justice . . . ib. 
 
 69 The right of punishing injustice . . . . . ib. 
 
 70 Right of all nations against one that openly despises justice . ib. 
 
 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 pro- 
 
 tect the citizens . . . . . .161 
 
 72 He must not suffer his subjects to offend other nations or their citizens 162 
 
 73 The acts of individuals not imputable to the nation . . ib. 
 74 unless she approve or ratify them . . . ib. 
 
 75 Conduct to be pursued by the offended party . . . ib. 
 
 76 Duty of the aggressor's sovereign .... 163 
 
 77 If he refuses justice, he becomes a party in the fault and offence . ib. 
 
 78 Another case in which the nation is guilty of the crimes of the citizens 164 
 
 CHAP. VII. 
 
 Effects of the Domain, between Nations. 
 
 79 General effects of the domain ..... 164 
 
 80 What is comprehended in the domain of a nation . . 165 
 
 81 The property of the citizens is the national property with respect to 
 
 foreign states . . . . . . . ib. 
 
 82 A consequence of that principle . . . '. ib. 
 
 83 Connection of the domain of the nation with the sovereignty . ib. 
 
 84 Jurisdiction ....... 166 
 
 85 Effects of the Jurisdiction in foreign countries . . . ib. 
 
 86 Desert and uncultivated places .... 167 
 
 87 Duty of the nation in that respect .... 168 
 
 88 Right of possessing things that have no owner . . . ib. 
 
 89 Rights granted to another nation . . . . . ib. 
 
 90 Not allowable to expel a nation from the country she inhabits . ib. 
 91 nor to extend by violence the bounds of empire . . 169 
 
 92 The limits of territories ought to be carefully ascertained . ib. 
 
 93 Violation of territory . . . . . . ib. 
 
 94 Prohibition to enter the territory .... 170 
 
 95 A country possessed by several nations at the same time . . ib. 
 
 96 A country possessed by a private person . . ib.
 
 CONTENTS. XXXI 
 
 Sect. p a g e 
 
 97 Independent families in a country .... 170 
 
 98 Possessions of certain places only, or of certain rights, in a vacant 
 
 country . . . '".', . ... . 171 
 
 CHAP. VIII. 
 
 Rules respecting Foreigners. 
 
 99 General idea of the conduct a state ought to observe towards foreigners 171 
 
 100 Entering the territory **> J **y . . .172 
 
 101 Foreigners are subject to the laws . . _ , . ib. 
 
 102 and punishable according to the laws f . v^ . ib. 
 
 103 Who is the judge of their disputes . ,,.,. ' (: r ,... * .. T ,?* -173 
 
 104 Protection due to foreigners . . . . ib. 
 
 105 Their duties . . . . . . . ib. 
 
 106 To what burthens they are subject t ' . . . 174 
 
 107 Foreigners continue members of their own nation . . ib. 
 
 108 The state has no right over the person of a foreigner . . ib. 
 
 109 nor over his property . '-- , -. : - : t j - . 174 
 
 110 Who are the heirs of a foreigner .'- ..'. ' . 175 
 
 111 Will of a foreigner . . ' -Vw # 
 
 112 Escheatage ....... 176 
 
 113 The right of traite foraine . . . . .177 
 
 114 Immovable property possessed by an alien . . . ib 
 
 115 Marriages of aliens . . . . . . ib. 
 
 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 . . 178 
 
 117 Rights still remaining from the primitive state of communion . ib. 
 
 118 Right retained by each nation over the property of others . . ib. 
 
 119 Right of necessity ... . *^<p' "\."' *'& 
 
 120 Right of procuring provision by force . '* '..' : v i' ' . 179 
 
 121 Right of making use of things belonging to others . . ib. 
 
 122 Right of carrying off women . . . . ib. 
 
 123 Right of passage . ;..... . lijjjpJJ . . 180 
 
 124 and of procuring necessaries .... ib. 
 
 125 Right of dwelling in a foreign country . . . ib. 
 
 126 Things, of which the use is inexhaustible . ^i A* t t-j<* . 181 
 
 127 Right of innocent use . . * . ^ * . ^ . . v ib. 
 
 128 Nature of that right in general . . . . .182 
 
 129 and in cases not doubtful .... ib. 
 
 130 Exercise of that right between nations .... ib.' 
 
 CHAP. X. 
 
 Sow a Nation is to use Tier 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 ..... 183 
 
 132 Innocent passage ...... ib.
 
 XXX11 CONTENTS. 
 
 Sect. p age 
 
 133 Securities may be required ..... 184 
 
 134 Passage of merchandise . .... 16. 
 
 135 Residence in the country . . . . . . ib. 
 
 136 How we are to act towards foreigners who desire a perpetual residence 185 
 
 137 Right accruing from a general permission .... ib. 
 
 138 A right granted as a favour ..... 186 
 
 139 The nation ought to be courteous . . i , . . . . ib. 
 
 CHAP. XI. 
 
 Of Usucaption and Prescription between Nations. 
 
 140 Definition of usucaption and prescription .... 187 
 
 141 Usucaption and prescription derived from the law of nature . ib. 
 
 142 What foundation is required for ordinary prescription . . 189 
 
 143 Immemorial prescription . . . . . ib. 
 
 144 Claimant alleging reasons for his silence .... 190 
 
 145 Proprietor sufficiently showing that he does not mean to abandon his 
 
 right . . . . . . . . ib. 
 
 146 Prescription founded on the actions of the proprietor . . ib. 
 
 147 Usucaption and prescription take place between nations . . ib. 
 
 148 More difficult, between nations, to found them on a presumptive desertion ib. 
 
 149 Other principles that enforce prescription .... 191 
 
 150 Effects of the voluntary law of nations on this subject . . ib. 
 
 151 Law of treaties, or custom, in this matter .... 192 
 
 CHAP. XII. 
 Of Treaties of Alliance and other Public Treaties. 
 
 152 Nature of treaties . . . . ;? . . 192 
 
 153 Compacts, agreements, or conventions .... ib. 
 
 154 By whom treaties are made . . . . . ib. 
 
 155 Whether a state under protection may make treaties . . 193 
 
 156 Treaties concluded by proxies or plenipotentiaries . . . ib. 
 
 157 Validity of treaties . . . . .194 
 
 158 Injury does not render them void . . . . . ib. 
 
 159 Duty of nations in that respect .... ib. 
 
 160 Nullity of treaties which are pernicious to the state . . ib. 
 
 161 Nullity of treaties made for an unjust or dishonest purpose . 195 
 
 162 Whether an alliance may be contracted with those who do not profess 
 
 the true religion ...... ib. 
 
 163 Obligation to observe treaties . . . . . ib. 
 
 164 The violation of a treaty is an act of injustice . . . 196 
 
 165 Treaties cannot be made contrary to those already existing . ib. 
 
 166 How treaties may be concluded with several nations with the same view 197 
 
 167 The more ancient ally entitled to a preference . . . ib. 
 
 168 We owe no assistance in an unjust war . . . ib. 
 
 169 General division of treaties ; those that relate to things already due 
 
 by the law of nature ..... t'6. 
 
 170 Collision of those treaties with the duties we owe to ourselves . 198 
 
 171 Treaties in which we barely promise to do no injury . . ib. 
 
 172 Treaties concerning things that are not naturally due : equal treaties ib.
 
 CONTENTS. , XXXlii 
 
 Sect. Page 
 
 173 Obligation to preserve equality in treaties .... 199 
 
 174 Difference between equal treaties and equal alliances . . 200 
 
 175 Unequal treaties, and unequal alliances .... ib. 
 
 176 An alliance with diminution of sovereignty may annul preceding 
 
 treaties . . . .202 
 
 177 We ought, as much as possible, to avoid making unequal alliances 203 
 
 178 Mutual duties of nations with respect to unequal alliances . ib. 
 
 179 in alliances where the inequality is on the side of the more 
 
 powerful party . ' . . . . . ib. 
 
 180 How inequality of treaties and alliances may be conformable to the 
 
 law of nature ...... 204 
 
 181 Inequality imposed by way of punishment . . ' . 205 
 
 182 Other kinds, of which we have spoken elsewhere . . ib. 
 
 183 Personal and real treaties . . . . ib. 
 
 184 Naming the contracting parties in the treaty does not render it personal ib. 
 
 185 An alliance made by a republic is real .... ib. 
 
 186 Treaties concluded by kings or other monarchs ",':..- ! . 206 
 
 187 Perpetual treaties, and those for a certain time . .' > . ib. 
 
 188 Treaties made for the king and his successors . . . ib. 
 
 189 Treaties made for the good of the kingdom . . '' . ib. 
 
 190 How presumption ought to be founded in doubtful cases . 207 
 
 191 The obligations and rights resulting from a real treaty pass to the 
 
 successors . . . . -, . . 208 
 
 192 Treaties accomplished once for all, and perfected v. ' . ib. 
 
 193 Treaties already accomplished on the one part t . . 209 
 
 194 The personal alliance expires if one of the parties ceases to reign 211 
 
 195 Treaties in their own nature personal .... ib. 
 
 196 Alliance concluded for the defence of the king and royal family ib. 
 
 197 Obligation of a real alliance, when the allied king is deposed . 212 
 
 CHAP. XIII. 
 
 Of the Dissolution and Renewal of Treaties. 
 
 198 Expiration of alliances made for a limited time . . . 213 
 
 199 Renewal of treaties . . . . . ' . ib. 
 
 200 How a treaty is dissolved, when violated by one of the contracting parties 214 
 
 201 The violation of one treaty does not cancel another . . ib. 
 
 202 The violation of one article in a treaty may cancel the whole . 215 
 
 203 The treaty is void by the destruction of one of the contracting powers 216 
 
 204 Alliances of a state that has afterwards put herself under the protec- 
 
 tion of another . . . - ,< . . . ib. 
 
 205 Treaties dissolved by mutual consent . " . '..'. . . 217 
 
 CHAP. XIV. 
 
 Of other public Conventions) of those that are made by Subordinate Powers, 
 -particularly of the, Agreement called in Latin Sponsio, and of Conven- 
 tions between the Sovereign and Private Persons. 
 
 206 Conventions made by sovereigns ..... 218 
 
 207 Those made by subordinate powers . . . .it, 
 
 208 Treaties concluded by a public person, without orders from the sove- 
 
 reign, or without sufficient powers .... 219 
 
 5
 
 XXXIV CONTENTS. 
 
 Sect. P*g 
 
 209 The agreement called sponsio .... 
 
 210 The state is not bound by such an agreement . . 220 
 
 211 To what the promiser is bound when it is disavowed . . ib. 
 
 212 To what the sovereign is bound .... 223 
 
 213 Private contracts of the sovereign . . . 226 
 
 214 Contracts made by him with private persons, in the name of the state ib. 
 
 215 They are binding on the nation, and on his. successors . . 227 
 
 216 Debts of the sovereign and the state .... ib. 
 
 217 Donations of the sovereign ..... 228 
 
 CHAP. XV. 
 
 Of the Faith of Treaties. 
 
 218 What is sacred among nations ..... 229 
 
 219 Treaties sacred between nations .... ib. 
 
 220 The faith of treaties is sacred . . . . . ib. 
 
 221 He who violates his treaties, violates the law of nations . ib. 
 
 222 Right of nations against him who disregards the faith of treaties . 230 
 
 223 The law of nations violated by the popes . . . ib. 
 
 224 This abuse authorized by princes . . . 231 
 
 225 Use of an oath in treaties. It does not constitute the obligation 232 
 
 226 It does not change the nature of obligations . . . ib. 
 
 227 It gives no pre-eminence to one treaty above another . . ib. 
 
 228 It cannot give force to a treaty that is invalid . . . 233 
 
 229 Asseverations ...... ib. 
 
 230 The faith of treaties does not depend on the difference of religion . ib. 
 
 231 Precaution to be taken in wording treaties . . . ib. 
 
 232 Subterfuges in treaties ...... 234 
 
 233 An evidently false interpretation inconsistent with the faith of treaties ib. 
 
 234 Faith tacitly pledged . . . . . . ib. 
 
 CHAP. XVI. 
 
 Of Securities given for the Observance of Treaties. 
 
 235 Guaranty . . . . . . .235 
 
 236 It gives the guarantee no right to interfere unasked in the execution 
 
 of a treaty ....... 236 
 
 237 Nature of the obligation it imposes .... ib. 
 
 238 The guaranty cannot impair the rights of a third party . ib. 
 
 239 Duration of the guaranty ...... 237 
 
 240 Treaties with surety ...... ib. 
 
 241 Pawns, securities, and mortgages . . . . . ib. 
 
 242 A nation's right over what she holds as a pledge . - . v ib. 
 
 243 How she is obliged to restore it . . ': . .238 
 
 244 How she may appropriate it to herself .... ib. 
 
 245 Hostages . . . . . . . ib. 
 
 246 What right we have over hostages .... 239 
 
 247 Their liberty alone is pledged . . . . . ib. 
 
 248 When they are to be sent back .... ib. 
 
 249 Whether they may be detained on any other account . . ib. 
 
 250 They may be detained for their own actions . . . 240 
 
 251 Of the support of hostages . . . . ib.
 
 CONTENTS. XXXV 
 
 Sect. Page 
 
 252 A subject cannot refuse to be a hostage . . . .241 
 
 253 Rank of the hostages . . ..... ib. 
 
 254 They ought not to make their escape .... ib. 
 
 255 Whether a hostage who diea is to be replaced . . . 242 
 
 256 Substitute for a hostage . . . . ib. 
 
 257 Hostage succeeding to the crown .... ib. 
 
 258 The liability of the hostage ends with the treaty . . . ib. 
 
 259 The violation of the treaty is an injury done to the hostages . ib. 
 
 260 The fate of the hostage when he who has given him fails in his en- 
 
 gagements . . . . . .... 243 
 
 261 Right founded on custom . . . . . . ib. 
 
 CHAP. XVII. 
 
 Of the Interpretation of Treaties. 
 
 262 Necessity of establishing rules of interpretation . . . 244 
 
 263 First general maxim it is not allowable to interpret what has no need 
 
 of interpretation . . . . . ib. 
 
 264 Second general maxim if he who could and ought to have explained 
 
 himself, has not done it, it is to his own detriment . . 245 
 
 265 Third general maxim neither of the contracting parties has a right 
 
 to interpret the treaty according to his own fancy . . ib. 
 
 266 Fourth general maxim what is sufficiently declared is to be taken for 
 
 true . . . . . . . . ib. 
 
 267 "We ought to attend rather to the words of the person promising, than 
 
 to those of the party stipulating .... ib. 
 
 268 Fifth general maxim the interpretation ought to be made according 
 
 to certain rules .' . . . . . 246 
 
 269 The faith of treaties imposes an obligation to follow those rules 247 
 
 270 General rule of interpretation . . . . , r ' . ib. 
 
 271 The terms are to be explained conformably to common usage . 248 
 
 272 Interpretation of ancient treaties . . . .- . . ib. 
 
 273 Quibbles on words . V . .' .-..; E ; . 249 
 
 274 A rule on that subject . , ' .V v .. . . . . ib. 
 
 275 Mental reservations . ' . . \ ' . - . t 'j. 
 
 276 Interpretation of technical terms . . . . . ib. 
 
 277 Terms whose signification admits of degrees . , . 250 
 
 278 Figurative expressions . . ',' . * . , ib. 
 
 279 Equivocal expressions . . . . . . ib. 
 
 280 The rule for these two cases '. '. '. .'./". . .251 
 
 281 Not necessary to give a term the same sense everywhere in the same 
 
 deed 252 
 
 282 We ought to reject every interpretation which leads to an absurdity ib. 
 
 283 or which renders the act null and void of effect . . 253 
 
 284 Obscure expressions interpreted by others more clear in the same 
 
 author ........ 254 
 
 285 Interpretation founded on the connection of the discourse . ib. 
 
 286 Interpretation drawn from the connection and relation of the things 
 
 themselves ....... 255 
 
 287 Interpretation founded on the reason of the deed . . . 256 
 
 288 Where many reasons have concurred to determine the will . ib. 
 
 289 What constitutes a sufficient reason for an act of the will . 257
 
 XXXVI CONTENTS. 
 
 Sect. Page 
 
 290 Extensive interpretation founded on the reason of the act . . 257 
 
 291 Frauds tending to elude laws or promises . . .258 
 
 292 Restrictive interpretation ...... 259 
 
 293 Its use, in order to avoid falling into absurdities, or into what is un- 
 
 lawful . . . . . . . . ib. 
 
 294 or what is too severe and burthensome . . 260 
 
 295 How it ought to restrict the signification agreeably to the subject ib. 
 
 296 How a change happening in the state of things may form an exception 261 
 
 297 Interpretation of a deed in unforeseen cases . . . 262 
 
 298 Reasons arising from the possibility, and not the existence of a thing ib. 
 
 299 Expressions susceptible of an extensive and a limited sense . 263 
 
 300 Things favourable, and things odious .... ib. 
 
 301 What tends to the common advantage, and to equality, is favourable : 
 
 the contrary is odious ...... 264 
 
 302 What is useful to human society, is favourable : the contrary is odious 265 
 
 303 Whatever contains a penalty is odious .... ib. 
 
 304 Whatever renders a deed void is odious . . . ib. 
 
 305 Whatever tends to change the present state of things, is odious : the 
 
 contrary is favourable . . . . ib. 
 
 306 Things of a mixed nature ..... 266 
 
 307 Interpretation of favourable things .... ib. 
 
 308 Interpretation of odious things ..... 267 
 
 309 Examples .... 268 
 
 310 How we ought to interpret deeds of pure liberality . . 270 
 
 311 Collision of laws or treaties ..... 271 
 
 312 First rule in cases of collision . . . . ib. 
 
 313 Second rule ....... ib. 
 
 314 Third rule . . . . . . . ib. 
 
 315 Fourth rule ....... 272 
 
 316 Fifth rule . . . . . . ib. 
 
 317 Sixth rule 273 
 
 318 Seventh rule . ~ . . . * . . ib. 
 
 319 Eighth rule . . . . . .274 
 
 320 Ninth rule ib. 
 
 321 Tenth rule .... . ib. 
 
 322 General remark on the manner of observing all the preceding rules ib. 
 
 CHAP. XVIH. 
 
 Of the Mode of terminating Disputes between Nations. 
 
 323 General direction on this subject ..... 274 
 
 324 Every nation is bound to give satisfaction respecting the just com- 
 
 plaints of another ...... 275 
 
 325 How nations may abandon their rights and just complaints . . ib. 
 
 326 Means suggested by the law of nature for terminating their disputes : 
 
 amicable accommodation . . . . , 276 
 
 327 Compromise . . . .;,... . . ib. 
 
 328 Mediation ....... ib. 
 
 329 Arbitration . . . .".", . 277 
 
 330 Conferences and congresses ..... 278 
 
 331 Distinction to be made between evident and doubtful cases . ib. 
 
 332 Essential rights, and those of less importance . * . . 279
 
 CONTENTS. XXXV11 
 
 Sect. Page 
 
 333 How we acquire a right of recurring to force in a doubtful case . 280 
 
 334 and even without attempting other measures . ib. 
 
 335 Voluntary law of nations on that subject .... ib. 
 
 336 Equitable conditions to be offered .... 281 
 
 337 Possessor's right in doubtful cases .... 282 
 
 338 How reparation of an injury is to be sought . . . ib. 
 
 339 Retaliation . ..... ib. 
 
 340 Various modes of punishing, without having recourse to arms . 283 
 
 341 Retortion . . . . . . . ib. 
 
 342 Reprisals ....... ib. 
 
 343 What is required to render them lawful .... 284 
 
 344 Upon what effects reprisals are made . . . ib. 
 
 345 The state is bound to compensate those who suffer by reprisals . 285 
 
 346 The sovereign alone can order reprisals . ib. 
 
 347 Reprisals against a nation for actions of her subjects, and in favour 
 
 of the injured subjects ...... ib. 
 
 348 but not in favour of foreigners . . . ib. 
 
 349 Those who have given cause for reprisals are bound to indemnify 
 
 those who suffer by them . . . . . 286 
 
 350 What may be deemed a refusal to do justice . . . 287 
 
 351 Subjects arrested by way of reprisals . . . . ib. 
 
 352 Our right against those who oppose reprisals . ,; , ; * . 288 
 
 353 Just reprisals do not afford a just cause for war . . . ib. 
 
 354 How we ought to confine ourselves to reprisals, or at length proceed 
 
 to hostilities ib. 
 
 BOOK III. 
 
 OF WAR. 
 
 CHAP. I. 
 
 Of War, its different Kinds, and the Right of making War. 
 
 1 Definition of war .... . . . . . 291 
 
 2 Public war . . . , . . . . ib. 
 
 3 Right of making war . . . . . . ib. 
 
 4 It belongs only to the sovereign power . . . . . 292 
 
 5 Defensive and offensive war ..... 293 
 
 CHAP. II. 
 
 Of the Instruments of War, the Raising of Troops, &c. their Commanders, 
 or the Subordinate Powers in War. 
 
 6 Instruments of war ....... 293 
 
 7 Right of levying troops ...... 294 
 
 8 Obligation of the citizens or subjects ..... ib.+ 
 
 9 Enlisting or raising of troops . . . . ib.
 
 XXXV111 CONTENTS. 
 
 Sect. Page 
 
 10 Whether there be any exemptions from carrying arms . . 294 
 
 11 Soldiers' pay and quarters ..... 296 
 
 12 Hospitals for invalids . . . . . . ib. 
 
 13 Mercenary soldiers ...... 297 
 
 14 Rule to be observed in their enlistment .... 298 
 
 15 Enlisting in foreign countries ..... 16. 
 
 16 Obligation of soldiers . . . . 299 
 
 17 Military laws ....... ib. 
 
 18 Military discipline . . . . ib. 
 
 19 Subordinate powers in war . . . . . ib. 
 
 20 How their promises bind the sovereign . . 300 
 
 21 In what cases their promises bind only themselves . . ib. 
 
 22 Their assumption of an authority which they do not possess . ib. 
 
 23 How they bind their inferiors ..... 301 
 
 CHAP. JfL. 
 
 Of the Just Causes of War. 
 
 24 War never to be undertaken without very cogent reasons . . 301 
 
 25 Justificatory reasons, and motives for making war . . ib. 
 
 26 What is in general a just cause of war .... 302 
 
 27 What war is unjust ...... ib. 
 
 28 The object of war ..... . ib. 
 
 29 Both justificatory reasons and proper motives requisite in undertaking 
 
 a war . . . . . . .303 
 
 30 Proper motives vicious motives . . . . ib. 
 
 31 War undertaken upon just grounds, but from vicious motives . ib. 
 
 32 Pretexts ........ 304 
 
 33 War undertaken merely for advantage . ib. 
 
 34 Nations who make war without reason or apparent motives . . 305 
 
 35 How defensive war is just or unjust .... ib. 
 
 36 How it may become just against an offensive war which was originally 
 
 just . . . . . . . . ib. 
 
 37 How an offensive war is just in an evident cause . . ib. 
 
 38 in a doubtful cause . . . . .306 
 
 39 War cannot be just on both sides .... ib. 
 
 40 Sometimes reputed lawful . . . . . . ib. 
 
 41 War undertaken to punish a nation .... 307 
 
 42 Whether the aggrandizement of a neighbouring power can authorize 
 
 a war against him ... . . ib. 
 
 43 Alone, and of itself, it cannot give a right to attack him . 308 
 
 44 How the appearances of danger give that right . '. . 309 
 
 45 Anothet case more evident . . . . .310 
 
 46 Other allowable means of defence against a formidable power . 311 
 
 47 Political equilibrium ...... ib. 
 
 48 Ways of maintaining it . . . .312 
 
 49 How he that destroys the equilibrium may be restrained, or even 
 
 weakened . . . . ... . ib. 
 
 , 50 Behaviour allowable towards a neighbour preparing for war . .313
 
 CONTENTS. XXXIX 
 
 CHAP. IV. 
 
 Of the Declaration of War, and of War in due Form. 
 
 Sect. Page 
 
 51 Declaration of war : necessity thereof . . . .315 
 
 52 What it is to contain . . . . . ib. 
 
 53 It is simple or conditional . . . . . .316 
 
 54 The right to make war ceases on the offer of equitable conditions ib. 
 
 55 Formalities of a declaration of war .... ib. 
 
 56 Other reasons for the necessity of its publication . . ib. 
 
 57 Defensive war requires no declaration .... 317 
 
 58 When it may be omitted in an offensive war . . . ib. 
 
 59 It is not to be omitted by way of retaliation . . . ib. 
 
 60 Time of the declaration . . . . ib. 
 
 61 Duty of the inhabitants on a foreign army's entering a country before 
 
 a declaration of war . . . . . . ib. 
 
 62 Commencement of hostilities ..... 318 
 
 63 Conduct to be observed towards the enemy's subjects who are in the 
 
 country at the time of the declaration of war . . . ib. 
 
 64 Publication of the war, and manifestoes . . . ib. 
 v 65 Decorum and moderation to be observed in the manifestoes . 319 
 
 66 What is a lawful war in due form . . . ib. 
 
 67 It is to be distinguished from informal and unlawful war . . 320 
 
 68 Grounds of this distinction ib. 
 
 CHAP. V. 
 
 Of the Enemy , and of Things belonging to the Enemy. 
 
 69 Who is an enemy . . ' . . * V '" . . .321 
 
 70 All the subjects of the two states at war are enemies . . ib. 
 71 and continue to be enemies in all places . . . ib. 
 
 72 Whether women and children are to be accounted enemies . ib. 
 
 73 Things belonging to an enemy ..... 322 
 
 74 continue such everywhere .... ib. 
 
 75 Neutral things found with an enemy .... ib. 
 
 76 Lands possessed by foreigners in an enemy's country . . ib. 
 
 77 Things due to the enemy by a third party . . . . ib. 
 
 CHAP^VI. 
 
 Of the Enemy's Allies, of Warlike Associations, of Auxiliaries and Sub 
 
 sidies. 
 
 78 Treaties relative to war . . . . . .323 
 
 79 Defensive and offensive alliances . . . ib. 
 
 80 Difference between warlike alliances and defensive treaties . . 324 
 
 81 Auxiliary troops ...... ib. 
 
 82 Subsidies . . . . . . . . ib. 
 
 83 When a nation is authorized to assist another . . . ib. 
 84 and to make alliances for war . . ib.
 
 Xl CONTENTS. 
 
 Sect. Page 
 
 85 Alliances made with a nation actually engaged in war . . 325 
 
 86 Tacit clause in every warlike alliance . . . ib. 
 
 87 To refuse succours for an unjust war is no breach of alliance . 326 
 
 88 What the casus fcederis is ..... ib. 
 
 89 It never takes place in an unjust war .... ib. 
 
 90 How it exists in a defensive war . . . ib. 
 91 and in a treaty of a guaranty . . . ib. 
 
 92 The succour is not due under an inability to furnish it, or when the 
 
 public safety would be exposed .... ib. 
 
 93 Other cases : two of the parties in an alliance coming to a rupture 327 
 
 94 Refusal of the succours due in virtue of an alliance . . ib. 
 
 95 The enemy's associates . . . ., . .328 
 
 96 Those who make a common cause with the enemy are his associates ib. 
 
 97 and those who assist him, without being obliged to it by 
 
 treaties . . . . . . . ib. 
 
 98 or who are in an offensive alliance with him . 329 
 
 99 How a defensive alliance associates with the enemy . . ib. 
 
 100 Another case ....... ib. 
 
 101 In what case it doee not produce the same effect . . . 330 
 
 102 Whether it be necessary to declare war against the enemy's associates 331 
 
 CHAP. VII. 
 
 Of Neutrality, and the Passage of Troops through a Neutral Country. 
 
 103 Neutral nations . . .'< . . , . . .332 
 
 104 Conduct to be pursued by a neutral nation . . . ib. 
 
 105 An ally may furnish the succour due from him, and remain neuter 333 
 
 106 Right of remaining neuter . . . . . ib. 
 
 107 Treaties of neutrality . . . . . . ib. 
 
 108 Additional reasons for making those treaties . . . 334 
 
 109 Foundation of the rules of neutrality .... ib. 
 
 110 How levies may be allowed, money lent, and every kind of things 
 
 sold, without a breach of neutrality . . . ib. 
 
 111 Trade of neutral nations with those which are at war . . 335 
 
 112 Contraband goods ...... 336 
 
 113 Whether such goods may be confiscated .... 337 
 
 114 Searching neutral ships . . . . .339 
 
 115 Enemy's property on board a neutral ship .... ib. 
 
 116 Neutral property on board an enemy's ship . ... .. . . ib. 
 
 117 Trade with a besieged town . . . . . ib. 
 
 118 Impartial offices of neutrals ." . . . . 340 
 
 119 Passage of troops through a neutral country . . . ib. 
 
 120 Passage to be asked . . . . ib. 
 
 121 It may be refused for good reasons '_ . ^, , vf ,, . a . 341 
 
 122 In what case it may be forced . . . , . vl . ib. 
 
 123 The fear of danger authorizes a refusal .... 342 
 124 or a demand of every reasonable security . . ib. 
 
 125 Whether always necessary to give every kind of security required . ib. 
 
 126 Equality to be observed towards both parties, as to the passage 343 
 
 127 No complaint lies against a neutral state for granting a passage . ib.
 
 CONTENTS. Xli 
 
 Sect. Page 
 
 128 That state may refuse it from fear of the resentment of the opposite 
 
 party . . ... 343 
 
 129 and lest her country should become the theatre of war ib. 
 
 130 What is included in the grant of passage . . . . 344 
 
 131 Safety of the passage . . . . . ib. 
 
 132 No hostility to be committed in a neutral country . . . ib. 
 
 133 Neutral country not to afford a retreat to troops, that they may again 
 
 attack their enemies . . . 345 
 
 134 Conduct to be pursued by troops passing through a neutral country ib. 
 
 135 A passage may be refused for a war evidently unjust . . ib. 
 
 CHAP. VIII. 
 
 Of the Sights 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 . 346 
 
 137 Difference between what we have a right to do, and what is barely 
 
 allowed to be done with impunity between enemies . . ib. 
 
 138 The right to weaken an enemy by every justifiable method . 347 
 
 139 The right over the enemy's person .... ib. 
 
 140 Limits of that right : an enemy not to be killed after ceasing to resist ib. 
 
 141 A particular case in which quarter may be refused . . 348 
 
 142 Reprisals . . . . ' . . . . ib. 
 
 143 Whether a governor of a town can be punished with death for an 
 
 obstinate defence ...... 349 
 
 144 Fugitives and deserters ...... 351 
 
 145 Women, children, the aged, and sick .... ib. 
 
 146 Clergy, men of letters, &c. . . .' ^ . 352 
 
 147 Peasants, and, in general, all who do not carry arms . ' . ib. 
 
 148 The right of making prisoners of war . ,.... . . 353 
 
 149 A prisoner of war not to be put to death . ' . 354 
 
 150 How prisoners of war are to be treated . . , -.. . ib. 
 
 151 Whether prisoners, who cannot be kept or fed, may be put to death 355 
 
 152 Whether prisoners of war may be made slaves . . . 356 
 
 153 Exchange and ransom of prisoners .... 357 
 
 154 The state is bound to procure their release . . . ib. 
 
 155 Whether an enemy may lawfully be assassinated or poisoned . 358 
 
 156 Whether poisoned weapons may be used in war . . 361 
 
 157 Whether springs may be poisoned . """*' . ib. 
 
 158 Disposition to be entertained towards an enemy . . 362 
 
 159 Tenderness for the person of a king who is in arms against us ^ . 363 
 
 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 . 364 
 
 161 The right of seizing them . . . . ib. 
 
 162 What is taken from the enemy by way of penalty . . ib. 
 
 163 What is withheld from him, in order to oblige him to give just satis- 
 
 faction ....... 365 
 
 6 D 2
 
 Xlll CONTENTS. 
 
 Sect. Page 
 
 164 Booty 365 
 
 165 Contribution ....... 366 
 
 166 Waste and destruction . . . . . . ib. 
 
 167 Ravaging and burning ..... 367 
 
 168 What things are to be spared . . . . .368 
 
 169 Bombarding towns ...... ib. 
 
 170 Demolition of fortresses . . . . . 369 
 
 171 Safeguards ....... ib, 
 
 172 General rule of moderation respecting the evil which may be done 
 
 to an enemy . . . . . . ib. 
 
 173 Rule of the voluntary law of nations on the same subject . ib. 
 
 CHAP. X. 
 
 Of Faith between Enemies, of Stratagems, Artifices in War, Spies, and 
 some other Practices. 
 
 174 Faith to be sacred between enemies .... 371 
 
 175 What treaties are to be observed between enemies . . 372 
 
 176 On what occasions they may be broken .... ib. 
 
 177 Lies . . . . . . . . ib. 
 
 178 Stratagems and artifices in war ..... 373 
 
 179 Spies 375 
 
 180 Clandestine seduction of the enemy's people . . . 376 
 
 181 Whether the offers of a traitor may be accepted . . 377 
 
 182 Deceitful intelligence . . . . . . ib. 
 
 CHAP. XI. 
 
 Of the Sovereign who wages an unjust war. 
 
 183 An unjust war gives no right whatever . . . % 378 
 
 184 Great guilt of the sovereign who undertakes it . . ib. 
 
 185 His obligations ....... 379 
 
 186 Difficulty of repairing the injury he has done . . . ib. 
 
 187 Whether the nation and the military are bound to any thing . 380 
 
 CHAP. XH. 
 
 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 381 
 
 189 Why they are bound to admit the voluntary law of nations . ib. 
 
 190 Regular war, as to its effects, is to be accounted just on both sides 382 
 
 191 Whatever is permitted to one party, is so to the other . ib. 
 
 192 The voluntary law gives no more than impunity to him who wages 
 
 an unjust war ....... 383
 
 CONTENTS. Xliii 
 
 CHAP. xm. 
 
 Of Acquisitions by War, and particularly of Conquests. 
 
 Seet. Pag 
 
 193 War a mode of acquisition ..... 384 
 
 194 Measure of the right it gives . . . . ib. 
 
 195 Rules of the voluntary law of nations . . . .385 
 19Q Acquisition of movable property .... ib. 
 
 197 Acquisition of immovables, or conquest .... 386 
 
 198 How to transfer them validly . . . . 387 
 
 199 Conditions on which a conquered town is acquired . . ib. 
 
 200 Lands of private persons . . . . . 388 
 
 201 Conquest of the whole state . . . . . ib. 
 
 202 To whom the conquest belongs . . . .391 
 
 203 Whether we are to set at liberty a people whom the enemy had un- 
 
 justly conquered .... . . . . . ib. 
 
 CHAP. XIV. 
 
 Of the Right of Postliminium. 
 
 204 Definition of the right of postliminium .... 392 
 
 205 Foundation of that right . . . ' . ib. 
 
 206 ]Jow it takes effect ...... 393 
 
 207 Whether it takes effect among the allies . . . ib. 
 
 208 Of no validity in neutral nations . . . . . ib. 
 
 209 What things are recoverable by that right . . . 394 
 
 210 Of those who cannot return by the right of postliminium . . ib. 
 
 211 They enjoy that right when retaken .... ib. 
 
 212 Whether that right extends to their property alienated by the enemy 395 
 
 213 Whether a nation that has been entirely subdued can enjoy the right 
 
 of pcstliminium ...... 396 
 
 214 Right of postliminium for what is restored at the peace . . 397 
 215 and for things ceded to the enemy . . . ib. 
 
 216 The right of postliminium does not exist after a peace . . ib. 
 
 217 Why always in force for prisoners .... ib. 
 
 218 They are free even by escaping into a neutral country . . ib. 
 
 219 How the rights and obligations of prisoners subsist . . 398 
 
 220 Testament of a prisoner of war . . . . . ib. 
 
 221 Marriage ...... ib. 
 
 222 Regulations established by treaty or custom, respecting postliminium ib. 
 
 CHAP. XV. 
 
 Of the Right of Private Persons in War. 
 
 223 Subjects cannot commit hostilities without the sovereign's order 399 
 
 224 That order may be general or particular .... ib. 
 
 225 Source of the necessity of such an order . . . ib. 
 
 226 Why the law of nations should have adopted this rule . . ib. 
 
 227 Precise meaning of the order ..... 400 
 228. What may be undertaken by private persons, presuming on the 
 
 sovereign's will ...... ib. 
 
 229 Privateers . . . . . . . ib. 
 
 230 Volunteers ....... 401
 
 xliv CONTENTS. 
 
 Sect, Page 
 
 231 What soldiers and subalterns may do . . . .401 
 
 232 Whether the state is bound to indemnify the subjects for damages 
 
 sustained in war ..... 402 
 
 CHAP. XVI. 
 
 Of various Conventions made during the Course of the War. 
 
 233 Truce and suspension of arms . . . . 404 
 
 234 does not terminate the war .... ib. 
 
 235 A truce is either partial or general .... ib. 
 
 236 General truce for many years .... ib. 
 
 237 By whom those agreements may be concluded . . . 405 
 
 238 The sovereign's faith engaged in them . . . 406 
 
 239 When the truce begins to be obligatory .... ib. 
 
 240 Publication of the truce . . . . . ib. 
 
 241 Subjects contravening the truce . . . . . ib. 
 
 242 Violation of the truce . . . . . 407 
 
 243 Stipulation of a penalty against the infractor , , < . ib. 
 
 244 Time of the truce . . . . . . ib. 
 
 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 ...... 408 
 
 246 Second rule not to take advantage of the truce in doing what hos- 
 
 tilities would have prevented .... 409 
 
 247 for instance, continuing the works of a siege, or repairing 
 
 breaches . . . . . . . ib. 
 
 248 or introducing succours .... ib. 
 
 249 Distinction of a particular case ..... 410 
 
 250 Retreat of an army during a suspension of hostilities . . ib. 
 
 251 Third rule Nothing to be attempted in contested places, but every 
 
 thing to be left as it was . . . . .411 
 
 252 Places quitted or neglected by the enemy . . . ib. 
 
 253 Subjects inclined to revolt against their prince not to be received 
 
 during the truce . . . . . ib. 
 
 254 much less to be solicited to treason . . ib. 
 
 255 Persons or effects of enemies not to be seized during the truce . ib. 
 
 256 Right of postliminium during the truce . . . ib. 
 
 257 Intercourse allowed during a truce .... ib. 
 
 258 Persons detained by unsurmountable obstacles after the expiration of 
 
 the truce . . . . . . 412 
 
 259 Particular conditions added to truces . . ' " .' : . ib. 
 
 260 At the expiration of the truce the war recommences without any new 
 
 declaration . . . . . . ib. 
 
 261 Capitulations ; and by whom they may be concluded . . ib. 
 
 262 Clauses contained in them . . - ' . . 413 
 
 263 Observance of capitulations, and its utility . , . 414 
 
 264 Promises made to the enemy by individuals . . . ib. 
 
 CHAP. XVII. 
 
 Of Safe-conducts and Passports, and Questions on the Hansom of Prisoners 
 of War. 
 
 265 Nature of safe-conducts and passports . . . . 416 
 
 266 From what authority they emanate . . *~< . . ib. 
 
 267 Not transferable from one person to another . . . ib.
 
 CONTENTS. xlv 
 
 Sect. Page 
 
 268 Extent of the promised security ..... 416 
 
 269 How to judge of the right derived from a safe conduct . . 417 
 
 270 Whether it includes baggage and domestics . . . ib. 
 
 271 Safe conduct granted to the father does not include his family . ib. 
 
 272 Safe conduct given in general to any one and his retinue . . ib. 
 
 273 Term of the safe conduct ..... 418 
 
 274 A person unavoidably detained beyond the term . . ib 
 
 275 The safe conduct does not expire at the death of him who gave it ib. 
 
 276 How it may be revoked . . . . . ib. 
 
 277 Safe conduct, with the clause " for such time as we shall think fit" ib. 
 
 278 Conventions relating to the ransom of prisoners . . . 419 
 
 279 The right of demanding a ransom may be transferred . . ib. 
 
 280 What may annul the convention made for the rate of the ransom . ib. 
 
 281 A prisoner dying before payment of ransom . . . ib. 
 
 282 Prisoner released on condition of procuring the release of another . 420 
 
 283 Prisoner retaken before he has paid his former ransom . ib. 
 
 284 Prisoner rescued before he has received his liberty . . ib. 
 
 285 Whether the things which a prisoner has found means to conceal, 
 
 belong to him ...... 421 
 
 286 Hostage given for the release of a prisoner . . . ib. 
 
 CHAP. xvin. 
 
 Of Civil War. 
 
 287 Foundation of the sovereign's rights against the rebels . . 421 
 
 288 Who are rebels ...... 422 
 
 289 Popular commotion, insurrection, sedition .... ib. 
 
 290 How the sovereign is to suppress them . . . ib. 
 
 291 He is bound to perform the promises he has made to the rebels . 423 
 
 292 Civil war 424 
 
 293 A civil war produces two independent parties . . .425 
 
 294 They are to observe the common laws of war . . . ib. 
 
 295 The effects of civil war distinguished according to cases . . 426 
 
 296 Conduct to be pursued by foreign nations . . . 427 
 
 BOOK IV. 
 
 OF THE RESTORATION OF PEACE ; AND OF EMBASSIES. 
 
 CHAP. I. 
 
 Of Peace, and the Obligation to cultivate it. 
 
 1 What peace is ....... 429 
 
 2 Obligation of cultivating it ..... 430 
 
 3 The sovereign's obligation in that respect .... ib. 
 
 4 Extent of that duty ...... ib. 
 
 5 Disturbers of the public peace . . . . .431 
 
 6 How far war may be continued . . . . . ib. 
 
 7 Peace the end of war . . , . . . 432 
 
 8 General effects of peace . . . . ib.
 
 Xlvi CONTENTS. 
 
 CHAP. II. 
 
 Treaties of Peace. 
 
 Sect. Pag* 
 
 9 Definition of a treaty of peace ..... 432 
 
 10 By whom it may be concluded . . . . . ib. 
 
 11 Alienations nnde by a treaty of peace ^ . . . . 433 
 
 12 How the sovereign may, in a treaty, dispose of what concerns individuals 435 
 
 13 Whether a king who is a prisoner of war can make a peace . . ib. 
 
 14 Whether peace can be made with an usurper . . . 436 
 
 15 Allies included in the treaty of peace . * . . ib. 
 
 16 Associates to treat, each for himself .... 437 
 
 17 Mediation . . . . . . . ib. 
 
 18 On what footing peace may be concluded . . . ib. 
 
 19 General effect of the treaty of peace .... 438 
 
 20 Amnesty ...... 439 
 
 21 Things not mentioned in the treaty .... ib. 
 
 22 Things not included in the compromise or amnesty . . ib. 
 
 23 Former treaties, mentioned or confirmed in the new, are a part of it 440 
 
 CHAP. III. 
 
 Of the Execution of the Treaty of Peace. 
 
 24 When the obligation of the treaty commences . . . 440 
 
 25 Publication of the peace . . . . ib. 
 
 26 Time of the execution ...... 441 
 
 27 A lawful excuse to be admitted .... ib. 
 
 28 The promise is void when the party to whom it was made has himself 
 
 hindered the performance of it . . . . . ib. 
 
 29 Cessation of contributions ..... 442 
 
 30 Products of the thing restored or ceded .... ib. 
 
 31 In what condition things are to be restored . . . ib. 
 
 32 The interpretation of a treaty of peace is to be against the superior party 443 
 
 33 Names of ceded countries . . . . ib. 
 
 34 Restoration not to be understood of those who have voluntarily given 
 
 themselves up . . . . . . 444 
 
 CHAP. IV. 
 
 Of the Observance and Breach of the Treaty of Peace. 
 
 35 The treaty of peace binds the nation and successors . . . 444 
 
 36 It is to be faithfully observed . . . . ib. 
 
 37 The plea of fear or force does not dispense with the observance . 445 
 
 38 How many ways a treaty of peace may be broken ' . . 446 
 
 39 by a conduct contrary to the nature of every treaty of peace ib. 
 
 40 To take up arms for a fresh cause is no breach of the treaty of peace ib. 
 
 41 A subsequent alliance with an enemy is likewise no breach of the treaty 447 
 
 42 Why a distinction is to be made between a new war and a breach of 
 
 the treaty . . . . . . . ib. 
 
 43 Justifiable self-defence is no breach of the treaty . . 448 
 
 44 Causes of rupture on account of allies .... 449 
 
 45 The treaty is broken by what is contrary to its particular nature ib. 
 
 46 by the violation of any article .... ib. 
 
 47 The violation of a single article breaks the whole treaty . . ib.
 
 CONTENTS. Xlvii 
 
 Sect, Page 
 
 48 Whether a distinction may here be made between the more and the less 
 
 important articles ...... 450 
 
 49 Penalty annexed to the violation of an article . . . ib. 
 
 50 Studied delays . . . . . . ib. 
 
 51 Unsurmountable impediments . . . . . ib. 
 
 52 Infractions of the treaty of peace by the subjects . . . 451 
 53 or by allies ...... ib. 
 
 54 Right of the offended party against him who has violated the treaty 452 
 
 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 452 
 
 56 They do that by the agency of public ministers . . . 453 
 
 57 Every sovereign state has a right to send and receive public ministers ib. 
 
 58 An unequal alliance, or a treaty of protection, does not take away that 
 
 right . . . . . . . . ib. 
 
 59 Right of the princes and states of the empire in that respect . ib. 
 
 60 Cities that have the right of banner . . . . 454 
 
 61 Ministers of viceroys . . . . . ' . 455 
 
 62 Ministers of the nation or of the regents during an interregnum . ib. 
 
 63 Sovereign molesting another in the exercise of the right of embassy ib. 
 
 64 What is allowable in that respect in time of war . . ib. 
 
 65 The minister of a friendly power is to be received . . . 456 
 
 66 Resident ministers ...... ib. 
 
 67 Admission of an enemy's ministers .... 457 
 
 68 Whether ministers may be received from or sent to an usurper . ib. 
 
 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 . . . 459 
 
 70 Representative character . . . . . ib. 
 
 71 Ambassadors . . . . . . . ib. 
 
 72 Envoys ....... 460 
 
 73 Residents . . . . . . . . ib. 
 
 74 Ministers ....... ib. 
 
 75 Consuls, agents, deputies, commissioners, &c. 461 
 
 76 Credentials . . . . . . ib. 
 
 77 Instructions . . . . . . . ib. 
 
 78 Right of sending ambassadors . . . . ib. 
 
 79 Honours due to ambassadors . . . . ". 462 
 
 CHAP. VII. 
 
 Of the Rights, Privileges, and Immunities of Ambassadors, and other Public 
 Ministers. 
 
 80 Respect due to public ministers ..... 464 
 
 81 Their persons sacred and inviolable .... ib. 
 
 82 Particular protection due to them ..... 465 
 
 83 When it commences ...... 466 
 
 84 What is due to them in the countries through which they pass . ib.
 
 Xlviii CONTENTS. 
 
 Sect. Page 
 
 85 Ambassadors going to an enemy's country .... 467 
 
 86 Embassies between enemies . . . . . ib. 
 
 87 Heralds, trumpeters, and drummers .... 468 
 
 88 Ministers, trumpeters, &c., to be respected even in a civil war . ib. 
 
 89 Sometimes they may be refused admittance . . . 469 
 
 90 Every thing which has the appearance of insult to them must be avoided ib. 
 
 91 By and to whom they may be sent . . . . 470 
 
 92 Independence of foreign ministers .... ib. 
 
 93 How the foreign minister is to behave .... 472 
 
 94 How he may be punished for ordinary transgressions . . 475 
 
 95 for faults committed against the prince . . ib. 
 
 96 Right of ordering away an ambassador who is guilty or justly suspected ib. 
 
 97 Right of repressing him by force, if he behaves as an enemy . 476 
 
 98 Ambassador forming dangerous plots and conspiracies . . ib. 
 
 99 What may be done to him according to the exigency of the case . 478 
 
 100 Ambassador attempting against the sovereign's life . . 479 
 
 101 Two remarkable instances respecting the immunities of public ministers 480 
 
 102 Whether reprisals may be made on an ambassador . . 481 
 
 103 Agreement of nations concerning the privileges of ambassadors . 482 
 
 104 Free exercise of religion ..... 483 
 
 105 Whether an ambassador be exempted from all imposts . . 484 
 
 106 Obligation founded on use and custom . . . 485 
 
 107 A minister whose character is not public .... ib. 
 
 108 A sovereign in a foreign country . . . 486 
 
 109 Deputies to the states ...... 487 
 
 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 . . . . . .488 
 
 111 How he may voluntarily subject himself to it . . . 489 
 
 112 A minister who is a subject of the state where he is employed . 490 
 
 113 Immunity of the minister extends to his property . . 491 
 
 114 The exemption cannot extend to effects belonging to any trade the 
 
 minister may carry on . . . . . . 492 
 
 115 nor to immovable property which he possesses in the country 493 
 
 116 How justice may be obtained against an ambassador . . ib. 
 
 CHAP. IX. 
 
 Of the Ambassador's House and Domestics. 
 
 117 The ambassador's house ...... 494 
 
 118 Right of asylum ...... 495 
 
 119 Exemption of an ambassador's carriages .... 496 
 
 120 of his retinue ..... 497 
 
 121 of his wife and family . . . . . ib. 
 
 122 of the secretary of the embassy . . . ib. 
 
 123 of the ambassador's couriers and despatches . . 498 
 
 124 The ambassador's authority over his retinue . . . ib. 
 
 125 When the rights of an ambassador expire .... 500 
 
 126 Cases when new credentials are necessary . . . ib. 
 
 127 Conclusion . . . , . . . ib.
 
 THE 
 
 LAW OF NATIONS. 
 
 PRELIMINARIES. 
 
 IDEA AND GENERAL PRINCIPLES OF THE LAW OF NATIONS. 
 
 JN ATIONS or states are bodies politic, societies of men 1. 
 united together for the purpose of promoting their mutual is meant b ? 
 safety and advantage by the joint efforts of their combined g t at*. 10n 
 strength. 
 
 Such a society has her affairs and her interests ; she de- 2. it is 
 liberates and takes resolutions in common ; thus becoming a moral per ~ 
 moral person, who possesses an understanding and a will pe- S01 
 culiar to herself, and is susceptible of obligations and rights. 
 
 To establish on a solid foundation the obligations and ? 3. Defini- 
 ng fas of nations, is the design of this work. tion of the 
 
 The Law of Nations is the science which teaches the rights ^ 
 subsisting between nations or states, and the obligations cor- 
 respondent to those rights.(T) 
 
 (1) The Law of Nations modifies 
 the intercourse of independent com- 
 monwealths 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 possi- 
 ble, 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 gene- 
 rously 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 sin- 
 increase the general wel- 
 
 fare of all mankind. (Post, $ 13, 14 ; General 
 Mackintosh, Dis. 3, 4 ; Montesq. de views of the 
 1'Esprit des Lois, liv. 1, c. 3 ; and see law of na- 
 1 Bla. Com. 34 to 44 ; 4 Bla. Com. 66, tions, and 
 67.) In cases of doubt arising upon how it is to 
 what is the Law of Nations, it is now be ascer- 
 an admitted rule among all Euro- tained. 
 pean nations, that our common reli- 
 gion, Christianity, pointing out the 
 principles of natural justice, should be 
 equally appealed to and observed by 
 all as an unfailing rule of construc- 
 tion. (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 Eu- 
 ropean powers, so desirable to be fixed, 
 especially at this period, when harmony 
 happily appears to subsist, and most 
 
 N. B. The notes numbered as 1, 2, 3, 4, Ac., and in general concluding with 
 0., are by the present Editor. 
 
 7 E 49
 
 Iv 
 
 IDEA AND GENERAL PRINCIPLES 
 
 ,IMI- I n this treatise it will appear, in what manner States, as 
 ^ such, ought to regulate all their actions. We shall examine 
 
 of the nations of Europe have, by re- 
 cent experience, become practically 
 convinced of the advantages that would 
 result from the establishment of fixed 
 general rules, so as to reconcile the fre- 
 quent discordancy of the decisions of 
 their various prize tribunals and upon 
 other contests. The statesmen of the 
 higher powers of Europe would immor- 
 talize themselves by introducing such 
 a code, and no period of history for the 
 purpose has been so favourable and op- 
 portune. (See Atcheson's Report of 
 the case of Havelock v. Rockwood, Pre- 
 face 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 interna- 
 tional 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 tribu- 
 nal to construe it, would in general be 
 prevented. 
 
 The pre- The sources from whence is to be 
 
 sent sources gathered information what is the posi- 
 of inforaa- tive Law of Nations generally and per- 
 tion upon manently binding upon all independent 
 the law of states f are acknowledged to be of three 
 Nations. descriptions : First, the long and ordi- 
 nary 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 WRIT- 
 INGS of eminent authors, who have long, 
 as it were by a concurrence of testi- 
 50 
 
 mony 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, Ixiii. n. (7),) and 
 the authority of writers, such as Gro- 
 tius, Barbeyrac, Bijnkershock, Wic- 
 quefort, Ac., 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, Cle- 
 rac, Pothier, Burlamaqui, Emerigon, 
 Roccus, Casegis, Loecenius, Santerna, 
 Maline, Molloy, and above all, the pre- 
 sent 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 for- 
 mer, viz. Ward's and Marten's Law 
 of Nations, and the recent valuable 
 French publication, Cours de Droit 
 Public Interne et Externe, par le Com- 
 mandeur 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 re- 
 sources, that Lord Mansfield framed 
 the celebrated letter of the Duke of 
 Newcastle to the King of Prussia's 
 Secretary, which is considered a stand- 
 ard 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, Ac., and Col- 
 lectanea Juridica, 1 vol. 129; see also 
 Viveash v. Seeker, 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
 
 OF THE LAW OF NATIONS. 
 
 Iv 
 
 the Obligations of a people, as well towards themselves as 
 towards other nations ; and by that means we shall discover 
 
 nations, especially that relating to mari- 
 time 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 in- 
 tercourse are imperfect Of those are 
 the Rhodian Laws, being one of the 
 earliest systems of marine law, but 
 which was superseded by the collec- 
 tion entitled Consolato del Mare, Gro- 
 tius, Book 3, ch. 1, s. 5, n. 6. Next 
 in order are the Laics of Oleron, pro- 
 mulgated 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 na- 
 tions. (See remarks on that code, 2 
 Ward's Law of Nations, 276 to 290). 
 But the most complete and compre- 
 hensive 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 au- 
 thority. (See 1 Marshall on Insurance, 
 Prelim. Dis. 18.) 
 
 In modern times, in order to pre- 
 vent 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 pro- 
 viding for every contingency, and 
 especially modifying and softening the 
 injurious consequences of sudden war 
 upon the commercial and other inter- 
 course '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, Ac. v. New Ha- 
 ven, 8 Wheat R. 464. } In these cases, 
 the treaty between the two contract- 
 ing states either alters, or expressly de- 
 clares 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 af- 
 forded by the valuable decisions of Sir 
 W. Scott, (afterwards Lord Stowell,) 
 and Sir J. Nicholl in the Court of Ad- 
 miralty and Prize Court, and by seve- 
 ral 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 sub- 
 jects of the public affairs of nations. 
 These have been fully published since 
 Vattel wrote; and the editor has at- 
 tempted 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 Com- 
 mercial Law, and in a Summary of the 
 Law of Nations, endeavoured to take 
 a more extended view of some of those 
 branches of the law of nations, princi- 
 pally as it affects foreign commerce, 
 and of the decisions and works subse- 
 quent to the publication of Vattel. 
 
 If the perfect general rights or law of Violation 
 nations be violated, then it appears to O f Law of 
 be conceded, that such violation may Nations, 
 be the actual and avowed ground of a wncn a 
 just war ; and it is even laid down that ground of 
 it is the duty of every nation to chas- war . 
 tise the nation guilty of the aggression. 
 (Vattel, post, Book I. chap, xxiii. g 283, 
 p. 126; Book II. chap. ii. g 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 overpowerful states, adher- 
 ing (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 
 51
 
 Iv 
 
 IDEA AND GENERAL PRINCIPLES 
 
 PHELIMI- the Rights which result from these obligations. For, the 
 NABI " 8 ' right being nothing more than the power of doing what is 
 C I Y * 3 morally possible, that is to say, what is proper and consist- 
 ent 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 Na- 
 tion 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 Nations being composed of men naturally free and inde- 
 
 what light pendent, and who, before the establishment of civil societies, 
 "totes' are to ^ ve( ^ together m the state of nature, Nations, or sovereign 
 be consi- states, are to be considered as so many free persons living 
 dered. together in the state of nature. 
 
 No 
 
 nent or ge- 
 
 imperfect and inefficient obligation? 
 The answer is, that all nations, al- 
 though for a time astounded and sur- 
 prised by the unexpected aggression of 
 an oppressive and ambitions conqueror, 
 will yet ultimately feel, and endeavour 
 to give effect to, the true law of na- 
 tions, lest, by suffering its continued 
 violations, they may individually be 
 sacrificed ; and consequently, as in the 
 instance alluded to, they will ulti- 
 mately coalesce and associate in one 
 common cause, to humiliate and over- 
 come 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 go- 
 vernment of each state, who has the 
 power of declaring war and peace, has 
 also, as an incident, sole power of de- 
 ciding upon questions of booty, cap- 
 ture, 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 ap- 
 peal from his decisions to the Privy 
 Council. In these cases no other mu- 
 nicipal court has cognizance in case of 
 any hostile seizure. Elphintton v. Be- 
 dreeehund, Knapp's Rep. 316 to 361 ; 
 and Hill v. 'lieardon, 2 Russ. Rep. 608, 
 and further, post, p. 392. So there is 
 no general international court in which 
 52 
 
 a treaty can be directly enforced, al- 
 though, collaterally, its meaning may 
 be discussed in a municipal court ; 
 therefore, no bill to enforce a treaty 
 can be sustained in equity. Nabob of 
 Carnatic v. East India Company, 2 Ves. 
 jun. 56 ; and Hill v. JRcardon, 2 Sim. 
 A Stu. 437 ; 2 Russ. Rep. 608. 
 
 Sometimes, however, especially in 
 modern times, treaties, confirmed by 
 temporary statutes in each country, ap- 
 point 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 ap- 
 pointed to carry into effect the con- 
 ventions for liquidating the claims of 
 British subjects on the French govern- 
 ment, with an appeal to the Privy 
 Council. In these cases, the appointed 
 jurisdiction is exclusive, and no other 
 municipal court has any power as re- 
 gards the adjustment of the claims be- 
 tween the two subjects of each coun- 
 try ; though, as between private indi- 
 viduals, if any claimant stand in the 
 situation of an agent or trustee, then, 
 in a court of equity, he may be com- 
 pelled to act as a trustee of the sum 
 awarded to him. Hill v. lieardon, Jac. 
 Rep. 84; 2 Russ. Rep. 608 to 633, 
 over-ruling the Vice-Chancellor's de- 
 cision in 2 Sim. & Stu. 437. C. { Co- 
 megyg v. Vance, 1 Peters S. C. Rep. 193, 
 decided upon the Treaty with Spain, 
 which coded Florida to the United 
 States, dated May 2d, 1819. See also 
 Leitapies v. Inyraham, 5 Barr, 71, and 
 the cases cited.}
 
 NARIES. 
 
 OF THE LAW OF NATIONS. h 
 
 It is a settled point with writers on the natural law, that PRELIMI- 
 all men inherit from nature a perfect liberty and independ- 
 ence, 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. 
 
 As men are subject to the laws of nature, and as their g 5. To 
 union in civil society cannot have exempted them from the ' " 
 obligation to observe those laws, since by that union they 1 
 do not cease to be men, the entire nation, whose common 
 will is but the result of the united wills of the citizens, re- 
 mains subject to the laivs of nature, and is bound to respect 
 them in all her proceedings. And since right arises from ob- 
 ligation, 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. 
 
 We must therefore apply to nations the rules of the law $ 6. in 
 of nature, in order to discover what their obligations are, and wh t the 
 what their rights : consequently, the law of Nations is origin- ^ w of ? a : 
 ally no other than the law of Nature applied to Nations. n ^y ^J 
 But as the application of a rule cannot be just and reason- sists. 
 able 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 so- 
 ciety is a subject very different from an individual of the hu- 
 man race ; from which circumstance, pursuant to the law of 
 nature itself, there result, in many cases, very different obliga- 
 tions 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 per- [ Ivii ] 
 fectly 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 sub- 
 jects ; 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) 
 
 (2) M. de Vattel then proceeds to heads First, the natural law of na- 
 state the different heads of interna- tions ; and secondly, the positive. The 
 tional law, which has been variously former is that of God and our con- 
 subdivided by other writers. The science, and consequently immutable, 
 clearest division is under too principal and ought to be the basis of the posi-
 
 Iviii 
 
 IDEA AND GENERAL PRINCIPLES 
 
 7. Defini 
 tion of the 
 necessary 
 law of na- 
 tions. 
 
 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 in- 
 
 tive laws of nations. The positive is 
 threefold; First, the universal volun- 
 tary law or uniform practice of nations 
 in general ; secondly, the customary 
 law; and thirdly, the conventional lain 
 or treaties. (See 1 Chitt/s Commer- 
 cial Law, 25 to 47.) C. 
 
 The following note of a former edi- 
 tor is deservedly retained. 
 
 The study of the science of the law 
 of nations presupposes an acquaint- 
 ance 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 cir- 
 cumstance of their being men ; a sci- 
 ence, whose first principle is this axiom 
 of incontestable truth " The great 
 end of every being en8bwed with in- 
 tellect and sentiment, is happiness." 
 It is by the desire alone of that happi- 
 ness, that we can bind a creature pos- 
 sessed 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 hap- 
 piness 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, inde- 
 pendently of every other considera- 
 tion 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, the 
 author of the universe, adds the most 
 lively energy to the law of nature, and 
 carries it to the highest degree of per- 
 fection. That necessary Being ne- 
 cessarily unites in himself all perfec- 
 tion : he is, therefore, superlatively 
 good, and displays his goodness by 
 54 
 
 forming creatures susceptible of hap- 
 piness. It is then his wish that his 
 creatures should be as happy as is con- 
 sistent 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 pro- 
 ducing the same law, unite in forming 
 the same obligation. The whole re- 
 verts to the first great end of man, 
 which is happiness. It was to con- 
 duct him to that great end that the 
 laws of nature were ordained : it is from 
 the desire pf happiness that his obliga- 
 tion to observe those laws arises. 
 There is, therefore, no man^what- 
 ever 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 na- 
 ture. They are necessary to the gene- 
 ral happiness of mankind; and who- 
 ever should reject them, whoever should 
 openly despise them, would by such 
 conduct alone declare himself an ene- 
 my to the human race, and deserve to 
 be treated as such. Now, one of the 
 first truths which the study of man re- 
 veals to ns, and which is a necessary 
 consequence of his nature, is, that in 
 a state of lonely separation from the 
 rest of his species, ho 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 esta- 
 blished that society, whoso 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 par- 
 ticular object of this treatise. Note 
 ed. A. D. 1797.
 
 OF THE LAW OF NATIONS. Iviti 
 
 dividuals, since states are composed of men, their resolutions PRELIMI- 
 are taken by men, and the law of nature is binding on all NARIKS ' 
 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.^) Several writers term it the Na- 
 tural laiv of Nations. 
 
 Since therefore the necessary law of nations consists in the g s. It is 
 application of the law of nature to states, which law is im- immutable, 
 mutable, as being founded on the nature of things, and par- 
 ticularly on the nature of man, it follows that the Necessary 
 law of nations is immutable. 
 
 Whence, as this law is immutable, and the obligations that g 9. Nations 
 arise from it necessary and indispensable, nations can neither can make 
 make any changes in it by their conventions, dispense with it no chan g e 
 in their own conduct, nor reciprocally release each other from ^sj* " 8 e r 
 the observance of it. with the ob- 
 
 This is the principle by which we may distinguish lawful ligations 
 conventions or treaties from those that are not lawful, and ^ isin s from 
 innocent and rational customs from those that are unjust or 1 ' 
 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 in- [ lix ] 
 different 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 con- 
 travenes 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 unlaw- 
 ful, and that, for reasons which shall be given in their pro- 
 per place, they are nevertheless often valid by the external 
 law. Nations being free and independent, though the con- 
 duct 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 con- 
 trary to the law of nature, which declares every nation free 
 and independent of all the others. 
 
 Man is so formed by nature, that he cannot supply all his 10. S( 
 own wants, but necessarily stands in need of the intercourse ci ^y esta- 
 and assistance of his fellow-creatures, whether for his imme- J^^f by 
 
 between all 
 
 (3) See this position illustrated, mercial Law, 28, and n. (4), pott, Ix. mankind. 
 Mackintosh, Dis. 7; 1 Chitty's Com- C. 
 
 55
 
 Ik IDEA AND GENERAL PRINCIPLES 
 
 PRELIMI- diate 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 in- 
 stances 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 sen- 
 sitive faculties. We see moreover that nature has refused to 
 bestow on men the same strength and natural weapons of de- 
 fence 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 know- 
 ledge ; and having thus become intelligent, they find a thou- 
 sand methods of preserving themselves, and supplying their 
 wants. Each individual, moreover, is intimately conscious 
 that he can neither live happily nor improve his nature with- 
 out the intercourse and assistance of others. Since, there- 
 fore, nature has thus formed mankind, it is a convincing 
 [ lx ] 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 z's, that each indivi- 
 dual should do for the others every thing which their necessities 
 require, and which he can perform without neglecting the duty 
 that he orves 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 gene- 
 ral 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) 
 
 (4) Ante, Mi. n. (2), post, lx. n. (4). whether the precise acts required of 
 
 (5) See the same position, post, him be or be not such as their own 
 \ 13, and post, chap. ii. g 2 and 88. municipal law will enforce ; just so a 
 The natural, or primary law, is that state, in its relations with other states, 
 of God and our conscience, the law is bound to conduct herself in the 
 which enjoins us to do good to our spirit of justice, benevolence, and good 
 neighbour, whether in literal strictness faith, even though there be no positive 
 he may have a perfect right to demand rules of international law, by the let- 
 such treatment from us or not. This ter of which she may bo actually tied 
 is a law that ought to bo as strong in down. The same rules of morality 
 obligation as the most distinct and which hold togqther men in families, 
 positive rule, though it may not al- and which form families into a corn- 
 ways be capable of the samo precise monwealth, also link together several 
 definition, nor consequently may al- commonwealths as members of tho 
 low tho samo remedies to enforce its ob- great society of mankind. Common- 
 gervance. As an individual is bound wealths, as well as private men, are 
 by the law of nature to deal honour- liable to injury, and capable of benefit 
 ably and truly with other individuals, from each other; it is therefore their 
 
 66
 
 OF THE LAW OF NATIONS. lx 
 
 It is easy to conceive what exalted felicity the world would PKELIMI- 
 
 enjoy, were all men willing to observe the rule that we have NARIES - 
 
 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. 
 
 The universal society of the human race being an institu- 1 JJ^J d 
 tion of nature herself, that is to say, a necessary consequence J^ions? 
 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, there- 
 fore, they unite in civil society for the purpose of forming a 
 separate state or nation, they may indeed enter into particu- 
 lar 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 differ- 
 ence 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 [ Ixi ] 
 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 socie- 
 ties or states, as individual man was obliged, before those 
 establishments, to live with other men, that is to say, accord- 
 ing 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. 
 
 duty to reverence, to practise, and to ty's Commercial Law, 28; Mackin- 
 
 enforce, those rales of justice which tosh, Disc. 7; Peake's Rep. 116; 2 
 
 control and restrain injury, which Hen. Bla. 259 ; and see ante, \ 1 ; and 
 
 regulate and augment benefit, which see extract from Mr. Pitt's celebrated 
 
 preserve civilized states in a tolerable speech on concluding the commercial 
 
 condition of security from wrong, and treaty between Great Britain and 
 
 which, if they could be generally France in A. D. 1786, and in which he 
 
 cteyed, would establish, and penna- powerfully refuted the doctrine of na- 
 
 nently maintain, the well-being of the tional and hereditary antipathy between 
 
 universal commonwealth of the human England and France, post, book ii. chap. 
 
 race. (See Observations in 1 Chit- ii. 3 21, p. 144. C. 
 
 8 57
 
 Ixi IDEA AND GENERAL PRINCIPLES 
 
 pRELiiri- Since the object of the natural society established between 
 ^ all mankind is that they should lend each other mutual as- 
 o\/ect of 16 8 ^ s ^ ance J i n order to attain perfection themselves, and to 
 this 6 sod- render their condition as perfect as possible, and since na- 
 ety of na- tions, considered as so many free persons living together in 
 tions. 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 con- 
 dition. 
 
 I is. First The first general law that we discover in the very object 
 general ob- o f the society of nations, is that each individual nation is 
 v^g 011 ".* bound to contribute every thing in her power to the happiness 
 nations, but an ^ perfection of all the others.* 
 
 not to pre- But the duties that we owe to ourselves being unquestion- 
 judice itself, ably 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 hap- 
 g 14. Ex- piness and perfection. (I say, every thing she can, not only 
 pianation in a physical but in a moral sense, that is, every thing 
 of this ob- that she can do lawfully, and consistently ivith justice and 
 sen-ation. h onour ^ When, therefore, she cannot contribute to the wel- 
 fare of another nation without doing an essential injury to 
 [ Ixii ] herself, her obligation ceases on that particular occasion, and 
 she is considered as lying under a disability to perform the 
 office in question. (6) 
 
 g 15. The Nations being free and independent of each other, in the 
 second ge- same manner as men are naturally free and independent, the 
 nerai law second general law of their society is, that each nation should 
 fraud in- ~ ^ e ^ e ft * n ^ e P eaceao ^ e enjoyment of that liberty which she in- 
 dependence herits from nature. The natural society of nations cannot 
 of nations, subsist, unless the natural rights of each be duly respected. 
 No nation is willing to renounce her liberty ; she will rather 
 break off all commerce with those states that should attempt 
 to infringe upon it. 
 
 g 16. Effect As a consequence of that liberty and independence, it ex- 
 
 of that liber- clusively belongs to each nation to form her own judgment of 
 
 *y- 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 
 
 * Xenophon points out the true rea- n. (1), Ix. n. (5); Book ii. chap. ii. $ 21, 
 
 son of this first of all duties, and esta- p. 144, post. C. 
 
 Wishes its necessity, in the following (6) Puffendorf, b. iii. c. 3, 8. 6, p. 29, 
 
 words: "If we see a man who is uni- writes clearly and decidedly on this 
 
 formly eager to pursue his own pri- important subject; he observes "The 
 
 vate advantage, without regard to the law of humanity does not seem to oblige 
 
 rules of honour or the duties of friend- us to grant passage to any other 
 
 ship, why should we in any emer- goods, except such as are absolutely 
 
 gency think of sparing him?" Note necessary for the support of their 
 
 edit. A. D. 1797. See modern author!- life to whom they are thus conveyed." 
 
 ties in support of that position, ante, Iv. C.
 
 OF THE LAW OF NATIONS. Ixii 
 
 of course it rests solely with her to examine and determine PK E "MI- 
 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, ex- 
 cept 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. 
 
 In order perfectly to understand this, it is necessary to ob- 17- Dis- 
 serve, that the obligation, and the right which corresponds tmctlo s be - 
 to or is derived from it, are distinguished into external and nal and n e e x" 
 internal. The obligation is internal, as it binds the con- temai, per- 
 science, and is deduced from the rules of our duty : it is ex- feet and im- 
 ternal, as it is considered relatively to other men, and pro- pei 3Ct obll ~ 
 duces some right between them. The internal obligation is ^ghta S 
 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 Avhich is accompanied by the right 
 of compelling those who refuse to fulfil the correspondent ob- 
 ligation ; the imperfect right is unaccompanied by that right 
 of compulsion. The perfect obligation is that which gives to [ Ixiii ] 
 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 imper- 
 fect, when the correspondent obligation depends on the judg- 
 ment 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. 
 
 Since men are naturally equal, and a perfect equality pre- is. Equal- 
 vails in their rights and obligations, as equally proceeding ** y " f na " 
 from nature Nations composed of men, and considered as tlons ' 
 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 pro- 
 duce 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. 
 
 By a necessary consequence of that equality, whatever is M- 
 lawful for one nation is equally lawful for any other ; and f ^ 
 whatever is unjustifiable in the one is equally so in the other. eqi
 
 Ixlii IDEA AND GENERAL PRINCIPLES 
 
 PRELIM!- A nation then is mistress of her own actions so long as 
 yARIE8 -. they do not affect the proper and perfect rights of any other 
 2 20. Each na tion so long as she is only internally bound, and does not 
 mistress 8 of ^ e un( ^ er anv external and perfect obligation. If she makes 
 her own ac- an ill use f her liberty, she is guilty of a breach of duty ; 
 tions when but other nations are bound to acquiesce in her conduct, 
 they do not s i nce they have no right to dictate to her. 
 ^rfect 116 Since nations- are free, independent, and equal and since 
 rights of eacn possesses the right of judging, according to the dictates 
 others. 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 
 tary law of their affairs and the pursuit of their pretensions, without re- 
 nations, gard to the intrinsic justice of their conduct, of which others 
 have no right to form a definitive judgment ; so that what- 
 ever may be done by any one nation may be done by any 
 [ Ixiv ] 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 con- 
 sented 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) 
 
 (7) The natural primary or internal voluntary law, or those rules which are 
 
 law of nations which is thus binding considered to have become law by the 
 
 in conscience, and immutable, it must uniform practice of nations in general, 
 
 be admitted, is mere theory, until it has and by the manifest utility of the rules 
 
 been assented to by a state as binding themselves ; secondly, the customary 
 
 on her : but besides that law of con- law, or that which, from motives of 
 
 science, which, until so assented to, is convenience, has by tacit but implied 
 
 imperfect, there is what is termed the agreement prevailed, not generally in- 
 
 potitive or secondary law of nations, and deed among all nations, nor with BO 
 
 which is threefold ; first, the universal paramount utility as to become a por- 
 
 60
 
 OF THE LAW OF NATIONS. IxiV 
 
 The laws of natural society are of such importance to the ""*i- 
 safety of all states, that, if the custom once prevailed of NARIE8 - 
 trampling them under foot, no nation could flatter herself ^ 22- Rl s nt 
 with the hope of preserving her national existence, and en- ag^uSfe 
 joying domestic tranquillity, however attentive to pursue infractors 
 every measure dictated by the most consummate prudence, of the law 
 justice, and moderation.* Now all men and all states have of nations - 
 a perfect right to those things that are necessary for their 
 preservation, since that right corresponds to an indispensa- Right of de- 
 Die obligation. All nations have therefore a right to resort clarin s war - 
 to forcible means for the purpose of repressing any one par- 
 ticular 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. 
 
 But care must be taken not to extend that right to the \ 23. Mea- 
 prejudice of the liberty of nations. They are all free and sure of that 
 independent, but bound to observe the laws of that society nght ' 
 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, [ Ixv ] 
 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. 
 
 tion of universal voluntary law, but bear you out in a further progress ; 
 
 enough to have acquired a prescriptive thus, for instance, on mere general 
 
 obligation among certain states, so principles, it is lawful to destroy your 
 
 situated as to be mutually benefited by enemy, and mere general principles 
 
 it, as the customary law prevailing make no great difference as to the 
 
 among different nations in the whale manner by which this is to be effected ; 
 
 fishery, and illustrated by the decision but the conventional law of mankind, 
 
 in Penning* v. Lord Grenville, 1 Taunt, which is evidenced in their practice, 
 
 Rep. 241, 248, upon the division of the does make a distinction, and allows 
 
 profits arising from a whale when killed some and prohibits other modes of de- 
 
 by the crews of several boats ; and struction ; and a belligerent is bound 
 
 thirdly, the conventional law, or that to confine himself to those modes 
 
 which is agreed between particular states which the common practice of mankind 
 
 by express treaties, a law binding only has employed, and to relinquish " those 
 
 upon the parties among whom such which the same practice has not 
 
 treaties are in force. See 1 Chitty's brought within the ordinary exercise 
 
 Commercial Law, 28, 29, and see post, of war, however sanctioned by its prin- 
 
 2 27, p. 66. ciples and purposes :" so it has ever 
 
 In the case of the ship, Flad Oyen, been the practice of nations to bring 
 
 1 Rob. Rep. 115, Sir William Scott ob- vessels captured by them into their own 
 
 served, " A great part of the law of ports, and to condemn them as prize in 
 
 nations stands on the usage and prac- their own Admiralty Courts ; and there- 
 
 tice of nations, and on no other founda- fore a sentence of condemnation in the 
 
 tion : it is introduced, indeed, by gene- neutral country would be illegal and 
 
 ral principles, but it travels with those void. Ibid. C. 
 
 general principles only to a certain ex- * Etenim si hsec pertubare omnia 
 
 tent; and if it stops there, you are et permiscere volumus, totam vitam, 
 
 not at liberty to go farther and to say, periculosam, insidiosam, infestamque 
 
 that Here general speculations would reddeinus. Cicero in Verr. ii. 15. 
 
 F 61
 
 iXV IDEA AND GENERAL PRINCIPLES 
 
 PBELIMI- The several engagements into which nations may enter 
 IIES ' produce a new kind of law of nations, called Conventional, 
 
 Con - or of Treaties. As it is evident that a treaty binds none 
 kut the contracting parties, the conventional law of nations 
 tions, or law is not a universal but a particular law. All that can be done 
 of treaties, 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. Cus- Certain maxims and customs, consecrated by long use, and 
 tomary law 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 conven- 
 tional law. The same remark, therefore, is equally applica- 
 ble to this customary law, viz. that a minute detail of its par- 
 ticulars 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. 
 
 I 26. Gene- When a custom or usage is generally established, either 
 rai rule re- b e t we en all the civilized nations in the world, or only between 
 that law. those of a certain continent, as of Europe, for example, or 
 between those who have a more frequent intercoui'se with 
 <jach other ; if that custom is in its own nature indifferent, 
 [ Ixvi ] tnd much more, if it be useful and reasonable, it becomes ob- 
 ligatory 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 de- 
 clared 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 re- 
 linquish it, since nothing can oblige or authorize her to 
 violate the law of nature. 
 
 (8) From the authorities cited in (9) As to this position, see further, 
 
 Benest \. Pipon, Knapp's Rep. 67, it Marten's L. N. 356, and Fenningi v. 
 
 seems, that most nations agree, that Lord Grenville, 1 Taunton's Rep. 248. 
 
 twenty years' uninterrupted usage (for There must be a reasonable notification, 
 
 twenty yean is evidence as well of pub- in point of time, of the intention not to 
 
 lie and general customs or practices as be bound by the customary law. Ibid. 
 
 of private rights) is sufficient to sustain and 1 Chitty's Criminal Law 29, 35, 92. 
 
 the same. C. C. 
 62
 
 OF THE LAW OF NATIONS. 
 
 These three kinds of law of nations, the Voluntary, the 
 Conventional, and the Customary, together constitute the 
 Positive Law of Nations.(lQ) For they all proceed from ?. 27 - - Po * f - 
 the will of Nations ; the Voluntary from their presumed co 
 sent, the Conventional from an express consent, ami 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 pre- 
 scribes, 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 in- 
 stances from the maxims of the Internal law, which never- 
 theless 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. 
 
 To furnish the reader beforehand with a general direction g 28. Gene- 
 respecting the distinction between the Necessary and the ralma ^ im 
 Voluntary law, let us here observe, that, as the Necessary JJ^^f 
 law is always obligatory on the conscience, a nation ought t he neces- 
 never to lose sight of it in deliberating on the line of conduct sary and 
 she is to pursue in order to fulfil her duty ; but when there the volun - 
 is question of examining what she may demand of other tory law * 
 states, she must consult the Voluntary law, whose maxims 
 are devoted to the safety and advantage of the universal 
 society of mankind. 
 
 (10) See Division of Laws of Nations, ante, IviL n. (2). C.

 
 BOOK I. 
 
 OF NATIONS CONSIDERED IN THEMSELVES. 
 
 CHAP. I. 
 
 OF NATIONS OR SOVEREIGN STATES.(IO) 
 
 A NATION or a state is, as has been said at the beginning 1. Of the 
 of this work, a body politic, or a society of men united t - 
 gether 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 in- 
 vested with it are the Sovereign.(1.Q) 
 
 It is evident, that, by the very act of the civil or political 2. The 
 association, each citizen subjects himself to the authority of authorit y f 
 the entire body, in every thing that relates to the common p i iti ^ er 
 welfare. The authority of all over each member, therefore, t he mem- 
 essentially belongs to the body politic, or state ; but the ex- bers. 
 ercise of that authority may be placed in different hands, ac- 
 cording as the society may have ordained. L * ] 
 
 If the body of the nation keep in its own hands the em- ? 3 - Of the 
 pire, or the right to command, it is a Popular government, a ?* of 
 Democracy ; if it intrust it to a certain number of citizens, vernment. 
 to a senate, it establishes an Aristocratic republic ; finally, . 
 if it confide the government to a single person, the state be- 
 comes a Monarchy. .(11.) 
 
 These three kinds of government may be variously com- 
 bined and modified. We shall not here enter into the par- 
 
 (10) The student desirous of enlarg- ferent Governments ; and see Cours do 
 
 ing his knowledge upon this subject Droit Public Interne et Externe, Paris, 
 
 should read Locke on Government; De A. D. 1830. C. 
 
 Lolme on the Constitution; 1 Bla. Com. (11) See the advantages and disad- 
 
 47 ; Sedgwick's Commentaries thereon ; vantages of each of those forms of go- 
 
 and Chitty Junior's Prerogatives of the vernment shortly considecfjfL 1 Bla. 
 
 Crown as regards Sovereignty and dif- Com. 49J 50. C. 
 
 o F2 65
 
 2 OF NATIONS, OR 
 
 BOOK i. ticulars ; this subject belonging to the public universal law ;* 
 . CHAP> * for the object of the present work, it is sufficient to establish 
 the general principles necessary for the decision of those dis- 
 putes that may arise between nations. 
 
 g 4. What Every nation that governs itself, under what form soever, 
 are sove- without dependence on any foreign power, is a Sovereign 
 reign states, fitafa. 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 na- 
 tion 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 la\vs. 
 g 5. Of We ought, therefore, to account as sovereign states those 
 states bound which have united themselves to another more powerful, by 
 by unequal an une q ua l alliance, in which, as Aristotle says, to the more 
 alliance. powerful is given more honour, and to the weaker, more as- 
 sistance. 
 
 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. 
 
 2 6. Or by Consequently a weak state, which, in order to provide for 
 treaties of its safety, places itself under the protection of a more power- 
 protection. f u i On6j an( j en g a ges, in return, to perform several offices 
 3 ] 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 sove- 
 reigns who acknowledge no other law than that of nations. (12) 
 
 * Nor shall we examine which of minished through your fault." " True," 
 those different kinds of government is replied the king : " I shall leave them 
 the best. It will be sufficient to say a smaller portion of it; but it will 
 in general, that the monarchical form rest upon a firmer basis." The Lace- 
 appears preferable to every other, pro- daemonians, during a certain period, 
 vided the power of the sovereign be had two chiefs to whom they very im- 
 limited, and not absolute, qui [prin- properly gave the title of kings. They 
 cipatus] turn demum regius est, si in- were magistrates, who possessed a very 
 tra modestiae et mediocritatis fines so limited power, and whom it was not 
 contineat, excessu potestatis, quam im- unusual to cite before the tribunal of 
 prudentes in dies augere satagunt, justice, to arrest, to condemn to 
 minuitur, penitusque corrunipitur, Nos death. Sweden acts with less impro- 
 stulti, majoris, potentials specie decepti, priety in continuing to bestow on he* 
 dilabimur in contrarium, non satis chief the title of king, although she hw 
 considerantes earn demum tutam esso circumscribed his power within very 
 potentiam quae viribus modum imponit. narrow bounds. IIo shares not hie 
 The maxim has both truth and wisdom authority with a colleague, he is 
 on its side. The author here quotes hereditary, and the state has, from 
 the saying of Theopompus, king of time immemorial, borne the title of a 
 Sparta, who, returning to his house kingdom. Edit. A. D. 1797. 
 amidst the acclamations of the peo- (12) This and other rules respect- 
 pie, after the establishment of the ing smaller states sometimes form the 
 Ephori " You will leave to your chil- subject of consideration even in the 
 dren (said his wife) an authority di- Municipal Courts. In case of a re- 
 66
 
 SOVEREIGN STATES. 
 
 There occurs no greater difficulty with respect to tributary BOOK i. 
 states ; for though the payment of tribute to a foreign power CHAP- *' 
 
 i 1 1- _ 1_ J.-L - J: : C j.1 _ I. 
 
 does in some degree diminish the dignity of those states, from 2 5' C 
 its being a confession of their weakness, yet it suffers their g^ t e S Ury 
 sovereignty to subsist entire. The custom of paying tribute 
 was formerly very common, the weaker by that means pur- 
 chasing of their more powerful neighbour an exemption from 
 oppression, or at that price securing his protection, without 
 ceasing to be sovereigns. 
 
 The Germanic nations introduced another custom that 8. Of 
 of requiring homage from a state either vanquished, or too feudatory 
 weak to make resistance. Sometimes even, a prince has states ' 
 given sovereignties in fee, and sovereigns have voluntarily 
 rendered themselves feudatories to others. 
 
 \ \ When the homage leaves independency and sovereign au- 
 thority 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 feuda- 
 
 J tory prince being strictly sovereign. The king of Naples 
 
 pays homage for his kingdom to the pope, and is nevertheless 
 
 V reckoned among the principal sovereigns of Europe. 
 
 Two sovereign states may also be subject to the same 9. Of two 
 prince, without any dependence on each other, and each may * totes sub - 
 retain all its rights as a free and sovereign state. The king^J ^^ 
 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. 
 
 Finally, several sovereign and independent states may 10. Of 
 unite themselves together by a perpetual confederacy, with- f tates form - 
 out ceasing to be, each individually, a perfect state. They inr 
 will together constitute a federal republic: their joint de- 
 liberations 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 per- 
 son 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. 
 
 volted colony, or part of a parent or Thompson v. Powles, 2 Sim. Rep. 202 ; 
 
 principal state, no subject of another Yrisarri v. Clement, 2 Car. & P. 223; 
 
 state can legally make a contract with 11 B. Moore, 308; 3 Bing. 432; and 
 
 it or assist the same without leave of post. C. { The United States v. Palmer, 
 
 his own government, before its sepa- 3 Wheat 610. See Cherriot v. Foussat, 
 
 rate independence has been recog- 3 Binn. 252.} 
 
 nised by his own government. Jones (13) Of course, the words " at pre- 
 
 v. Garcia del Rio, 1 Turn. & Russ. 297 ; sent" refer only to the time when 
 
 67
 
 3 GENERAL PRINCIPLES OP 
 
 BOOK i. But a people that has passed under the dominion of an- 
 . CHAP ' * other is no longer a state, and can no longer avail itself directly 
 g 11. Of a O f the law of nations. Such were the nations and kingdoms 
 state that ^^ the Romans rendered subject to their empire ; the 
 
 has passed ,. i i 11 > t i 
 
 under the generality even of those whom they honoured with the name 
 
 dominion of of friends and allies no longer formed real states. Within 
 
 another. themselves they were governed by their own laws and magis- 
 
 [ 4 ] trates ; 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. 
 
 \ 12. The The law of nations is the law of sovereigns ; free and inde- 
 objects of pendent states are moral persons, whose rights and obligations 
 this treatise. ^ Q are ^ Q es t a kii sn j, n this treatise. 
 
 
 CHAP. II. 
 
 CHAP, n. GENERAL PRINCIPLES OF THE DUTIES OF A NATION TOWARDS 
 
 ITSELF. 
 
 13. A na- IF the rights of a nation spring from its obligations, it is 
 
 toact U a Sbt P rinci P all y from those tb - at relate to itself - Jt wil1 further 
 gre'eabiy to appear, that its duties towards others depend very much on 
 its nature, its duties towards itself, as the former are to be regulated 
 ( 14 ) and measured by the latter. As we are then to treat of the 
 
 obligations and rights of nations, an attention to order re- 
 quires that we should begin by establishing what each nation 
 owes to itself. 
 
 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, natures convenienter 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 con- 
 cerned in its national character, and which are either suitable 
 
 Vattel wrote, and it is unnecessary to has acquired powers far beyond its 
 
 mention otherwise than thus cursorily diminutive extent. These being esta- 
 
 the notorious recent changes. C. blished, it becomes the duty of such 
 
 (14) If to particularize may be a state, and of those exercising the 
 
 allowed, we may instance Great Bri- powers of government, to cultivate and 
 
 tain. Comparatively, with regard to improve these natural advantages ; and 
 
 dimensions, it would be but an insig- in that view the ancient exclusive 
 
 nificant state ; but with regard to its navigation system, constituting Eng- 
 
 insular situation and excellent ports, land the carrier of Europe and the 
 
 and its proximity to Europe, and above world, were highly laudable ; and it is 
 
 all the singularly manly, brave, and to be hoped that a return of the system, 
 
 adventurous character of its natives, injudiciously abandoned, mil ere long 
 
 it has been capable of acquiring and take place. C. 
 68
 
 CHAP. 
 
 THE DUTIES OF A NATION, ETC. 
 
 or opposite to what constitutes it a nation ; so that it is not BOOK i. 
 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 hook, 
 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. 
 
 He who no longer exists can have no duties to perform : and ? u. of 
 a moral being is charged with obligations to himself, only with the preser- 
 a view to his perfection and happiness : for to preserve and to perfection* 
 perfect his own nature, is the sum of all his duties to himself. O f a na tion. 
 
 The preservation of a nation consists in the duration of the 
 political association by which it is formed. If a period is 
 put to this association, the nation or state no longer subsists, 
 though the individuals that composed it still exist. 
 
 The perfection 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 con- 
 sists, 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 agree- [ 5 ] 
 ment. In the same manner its external state will be more 
 or less perfect, according as it concurs with the interior per- 
 fection of the nation. 
 
 The end or object of civil society is to procure for the 15 - What 
 citizens whatever they stand in need of for the necessities, j^!j e en . d of 
 the conveniences, the accommodation of life, and, in general, c " 
 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. 
 
 In the act of association, by virtue of which a multitude 16. A na- 
 of men form together a state or nation, each individual has tion is under 
 entered into engagements with all, to promote the general J ." n ^ ig *' 
 welfare ; and all have entered into engagements with each S e velteeH. 
 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
 
 5 GENERAL PRINCIPLES OP 
 
 BOOK i. creation, is not derived to nations immediately from nature, 
 CHAP> "' 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 poli- 
 tical society subsists, the whole nation is obliged to endeavour 
 to maintain it. 
 
 17. And If a nation is obliged to preserve itself, it is no less obliged 
 to preserve care f u ijy to preserve all its members. The nation owes this 
 !rs ' 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 asso- 
 ciation ; for those who compose a nation are united for their 
 j] 6 ] defence and common advantage ; and none can justly be de- 
 prived of this union, and of the advantages he expects to de- 
 rive 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) 
 
 1 18. A na- Since then a nation is obliged to preserve itself, it has a 
 
 tion has a right to every tiling necessary for its preservation. For the 
 
 ever* Thin ^ aw ^ ^ ature gi yes us a right to every thing without which 
 
 necessary^ we cannot fulfil our obligation ; otherwise it would oblige us 
 
 (15) This principle is in every re- self. This is the principle upon which 
 
 spect recognised and acted upon by is founded the rule " Nemo potent cxuerc 
 
 our municipal law. It is in respect of, patriam," Calvin's case, 7 Coke, 25 , 
 
 and as a due return for, the protection Co. Lit 129, a; and see an interest- 
 
 every natural born subject is entitled ing application of that rule in Mac- 
 
 to, and actually does, by law, receive donald's case, Forster's Crown Law. 
 
 from the instant of his birth, that all 59. C. 
 
 the obligations of allegiance attach (16) In tracing the consequences of 
 
 upon him, and from which he cannot this rule, we shall hereafter perceive how 
 
 by any act of his own emancipate him- important is the rule itself. C. 
 70
 
 THE DUTIES OF A NATION, ETC. O 
 
 to do impossibilities, or rather would contradict itself in pre- BOOK i. 
 scribing us a duty, and at the same time debarring us of the CHAf ' "' 
 only means of fulfilling it. It will doubtless be here under- 
 stood, 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 them- 
 selves for fulfilling a general obligation, the obligation must, 
 in that particular instance, be looked on as impossible, and 
 consequently void. 
 
 By an evident consequence from what has been said, a na- g 19. it 
 tion ought carefully to avoid, as much as possible, whatever ought to 
 might cause its destruction, or that of the state, which is the t a id *^ 
 same thing. might oec* 
 
 A nation or state has a right to every thing that can help s i on its de- 
 to ward off imminent danger, and keep at a distance whatever struction. 
 is capable of causing its ruin ; and that from the very same ? 20 : Of 
 reasons that establish its right to the things necessary to its everything 
 preservation. (17) that may 
 
 The second general duty of a nation towards itself is to promote 
 labour at its own perfection and that of its state. It is this * h " end - 
 double perfection that renders a nation capable of attaining | on ' ough a ~. 
 the end of civil society : it would be absurd to unite in to perfect 
 society, and yet not endeavour to promote the end of that itself and 
 union *** 
 
 Here the entire body of a nation, and each individual citi- 
 zen, 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 Na- 
 ture 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 possi- [ 7 ] 
 ble 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 
 
 (17) Salus popnli suprema eat lex. the property of any private individual. 
 Upon this principle it has been esta- See Governors, <fcc. v. Meredith, 4 Term 
 blished, that for national defence in Eep. 796-7. C. 
 war, it is legal to pull down or injure 
 
 71
 
 BOOK I. 
 CHAP. II. 
 
 g 22. And to 
 avoid every 
 thing con- 
 trary to its 
 perfection. 
 23. The 
 rights it de- 
 rives from 
 these obli- 
 gations. 
 2 24. Ex- 
 amples. 
 
 GENERAL PRINCIPLES OF 
 
 duty of the body collective in all their common deliberations, 
 and in every thing they do as a body.(18) 
 
 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) 
 
 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. 
 
 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 ena- 
 bles him to contribute to this great end, and everywhere dif- 
 fuses 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, con- 
 curring with him in every thing that tends to promote the 
 public welfare, partly ease 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 monu- 
 ment that does so much honour to human nature a monu- 
 ment capable of teaching kings how glorious it is to rule over 
 a free people ! 
 
 (18) In a highly intelligent and cul- 
 tivated society like England, this prin- 
 ciple is exemplified in an extraordinary 
 degree ; for in the legislative assembly, 
 members of parliament, without any 
 private interest excepting the approba- 
 tion of their countrymen, almost de- 
 stroy themselves by exertion in discus- 
 sing the improvement of existing regu- 
 lations ; and this indeed even to excess 
 as regards long speeches, sometimes 
 even counteracting their own laudable 
 endeavours. C. 
 
 (19) See Book I. chap, xxiii. g 283, 
 72 
 
 as to the duty of all nations to prevent 
 the violation of the law of nations. C. 
 (20) This is indeed a flattering com- 
 pliment from Vattel, a foreigner; but 
 certainly it is just; for although, as a 
 commercial nation, it might be sup- 
 posed that each individual principally 
 labours for his own individual gain; 
 yet when we refer to the spirited em- 
 ployment of capital in building na- 
 tional bridges, canals, rail-roads, Ac. 
 not yielding even 21. per cent., it must 
 be admitted that great public spirit for 
 national good very generally prevails. 
 C.
 
 THE DUTIES OF A NATION, ETC. 
 
 There is another nation illustrious by its bravery and its BOOK i. 
 victories. Its numerous and valiant nobility, its extensive CH * P ' "' 
 and fertile dominions, might render it respectable throughout 
 all Europe, and in a short time it might be in a most flourish- 
 ing 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, form the most salutary iesigns for [ 8 ] 
 promoting the happiness of his people ; in vain might those 
 designs be approved by the more sensible part, by the ma- 
 jority 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 coun- 
 cils are exposed to the caprice or treachery of a single member ? 
 
 We shall conclude this chapter, with observing that a 25. A n 
 nation ought to know itself. (21) Without this knowledge it tionou g ht 
 cannot make any successful endeavours after its own per- IJ 
 fection. 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. 
 
 (21) This is one of the soundest and true wisdom. Every moral and wise 
 
 most important principles that can be man should enlarge on this principle, 
 
 advanced, whether it refers to individu- and among others study that excellent, 
 
 als or to nations, and is essential even but too little known, work, Mason on 
 
 to the attainment of the rudiments of Self- Knowledge. 
 
 10 <J 73
 
 OF THE CONSTITUTION OF A STATE. 
 
 BOOK I. 
 CHAP. III. 
 
 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." 
 
 1 26. Of We have seen already that every political society must 
 
 public au- necessarily establish a public authority to regulate their com- 
 
 thonty ' mon 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 The fundamental regulation that determines the manner in 
 
 is the con- which the public authority is to be executed, is what forms 
 
 stitution of the constitution of the state. In this is seen the form in 
 
 a state. w hich the nation acts in quality of a body politic, how and 
 
 [ 9 ] 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 The perfection of a state, and its aptitude to attain the ends 
 nation O f society, must then depend on its constitution : consequently 
 choosVthe ^ most important concern of a nation that forms a political 
 best consti- society, and its first and most essential duty towards itself, is 
 tution. to choose the best constitution possible, and that most suita- 
 ble 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. 
 
 g 29. Of The laws are regulations established by public authority, 
 political, to be observed in society. All these ought to relate to the 
 
 welfare of the state and of the citizens - Tne laws ma( *e di- 
 rectly 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 funda- 
 mental laws. 
 
 The civil laws are those that regulate the rights and con- 
 duct 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 princi- 
 pally its fundamental laws, in establishing them, I say, with 
 
 74
 
 OF THE CONSTITUTION OF A STATE. 9 
 
 wisdom, in a manner suitable to the genius of the people, and BOOK * 
 to all the circumstances in which they may be placed : they CHAP - m - 
 ought to determine them and make them known with plain- 
 ness 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 de- 
 tail 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 cir- 
 cumstances. In the Law of Nations we must adhere to gene- 
 rals. 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 recipro- 
 cally what others may require from it. 
 
 The constitution and laws of a state are the basis of the ? 30. Of the 
 public tranquillity, the firmest support of political authority, 8U PP rt of 
 and a security for the liberty of the citizens. But this con- ^0^ 
 stitution is a vain phantom, and the best laws are useless, if obedience 
 they be not religiously observed : the nation ought then to to the laws, 
 watch very attentively, in order to render them equally re- [ 10 ] 
 spected 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 deve- 
 loped. 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 na- 
 ture, 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 them- 
 selves, may serve as steps to mount to higher and more per- 
 nicious enterprises. 
 
 The consequences of a good or bad constitution being of
 
 10 OF THE CONSTITUTION OF A STATE. 
 
 BOOK i. such importance, and the nation being strictly obliged to pro- 
 - CHAP ' m ' cure, as far as possible, the best and most convenient one, it 
 si. The has a right to every thing necessary to enable it to fulfil this 
 nation 'with OD lig at i n ( 18). It is then manifest that a nation has an 
 respect to indisputable right to form, maintain, and perfect its constitu- 
 its consti- tion, to regulate at pleasure every thing relating to the go- 
 tution and vernment, and that no person can have a just right to hinder 
 men' *** Government is established only for the sake of the na- 
 tion, with a view to its safety and happiness. 
 
 32. it If any nation is dissatisfied with the public administration, 
 may reform ft ma y apply the necessary remedies, and reform the govern- 
 ment Vern ~ men *' But observe that I say "the nation;" for I am very 
 far from meaning to authorize a few malcontents or incendia- 
 ries to give disturbance to their governors by exciting mur- 
 murs 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 con- 
 sidered 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 pre- 
 tence of reforming it. 
 
 \ 33. And In virtue of the same principles, it is certain that if the 
 may change nation is uneasy under its constitution, it has a right to 
 
 tutioT^ cnan g e 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 
 [ 11 ] 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 rea- 
 soning, that a nation may change the constitution of the state 
 by a majority of votes ; and whenever there is nothing in this 
 change that can be considered as contrary to the act of civil 
 association, or to the intention of those united under it, the 
 whole are bound to conform to the resolution of the major- 
 ity. (22) But if the question be, to quit a form of govern- 
 ment, 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 
 
 (22) In 1 Bla. Com. 51-2, it is con- but that doctrine, as regards the moral 
 
 tended, that, unless in cases where duty to observe laws, has been justly 
 
 the natural law or conscience dictates refuted. See Sedgwick's Commen- 
 
 the observance of municipal laws, it taries, 61 ; 2 Bos. <fc Pul. 375 ; 5 Bar. 
 
 is optional, in a moral view, to ob- & Aid. 341 ; ted vide 13 Ves. jun. 315, 
 
 serve the positive law, or to pay the 316. C. 
 penalty when detected in the breach ; 
 76
 
 OF THE CONSTITUTION OF A STATE. 11 
 
 have tasted it, though obliged to suffer the majority to~ do as BOOK i. 
 they please, are under no obligation at all to submit to the CHAP ' m ' 
 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. 
 
 Here, again, a very important question presents itself. It 34. Of 
 essentially belongs to the society to make laws both in rela- t]ie legisla- 
 tion to the manner in which it desires to be governed, and to ^ ^ther 
 the conduct of the citizens : this is called the legislative power. j t can 
 The nation may intrust the exercise of it to the prince, or to change the 
 an assembly ; or to that assembly and the prince jointly ; constitution, 
 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 the state ? The principles we have laid down lead us to 
 decide with certainty, that the authority of these 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 fun- 
 damental laws are excepted 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 legis- 
 lature 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 con- 
 stitution itself to their will. In short, it is from the constitu- 
 tion 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 ab- 
 solute authority, certainly the nation would not suffer it. [ 12 ] 
 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 , 
 
 (23) Thus, during the last war, Eng- being considered unconstitutional dele- 
 lish acts of Parliament delegated to gations of powers of altering the funda- 
 tke king in council the power of making mental laws, part of the constitution 
 temporary orders and laws regulating itself; but even then, the rules or 
 commerce. So by a bill of 3 Will. 4, orders so made are not absolutely to 
 power was proposed to be given to become law until they have been sub- 
 eight of the judges to make rules and mitted to, and not objected against, 
 orders respecting pleading, these not in parliament during six weeks. C. 
 G2 77
 
 12 
 
 OF THE SOVEREIGN. 
 
 BOOK I. 
 CHAP. III. 
 
 g 35. The 
 nation 
 ought not 
 to attempt 
 it without 
 great cau- 
 tion. 
 
 36. It is 
 the judge of 
 all disputes 
 relating to 
 the govern- 
 ment. 
 
 37. No 
 foreign 
 power has 
 a right to 
 interfere. 
 
 nation was voluntarily silent upon it, this would be considered 
 as an approbation of the act of its representatives. 
 
 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 opera- 
 tions, and frequent changes being in their own nature pre- 
 judicial, a people ought to be vqry 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. 
 
 We may conclude from what has been said ( 81), 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. 
 
 In short, all these aifairs 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. 
 
 CHAP. IV. 
 
 CHAP, iv. OF THE SOVEREIGN, HIS OBLIGATIONS, AND HIS RIGHTS. 
 
 38. Of the THE reader cannot expect to find here a long deduction 
 sovereign. O f h e 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 au- 
 thority : it frequently intrusts it to a senate, or to a single 
 person. That senate, or that person, is then the sovereign. 
 78
 
 OF THE SOVEREIGN. 13 
 
 It is evident that men form a political society, and submit BOOK 
 to laws, solely for their own advantage and safety. The 
 
 TAP. 
 
 sovereign authority is then established only for the common ? 39 - II is 
 good of all the citizens ; and it would be absurd to think that f^ 
 it could change its nature on passing into the hands of a sa f e tyand 
 senate or a monarch. Flattery, therefore, cannot, without advantage 
 rendering itself equally ridiculous and odious, deny that the of societ y- 
 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 administra- 
 tion 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.* 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 affection- 
 ately thanking all who concur with him in such salutary 
 views ! Certainly, a monarch who makes use of this lan- 
 guage, and by his conduct proves the sincerity of his pro- 
 fessions, 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 con- 
 siders 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 im- 
 mediately 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 
 
 * The last words of Louis VI. to fore had done on similar occasions) that 
 
 bis son Louis VII. were "Remem- " a single hour's attention devoted by a 
 
 ber, my son, that royalty is but a public prince to the care of his state, is of 
 
 employment, of which you must render more use and consequence than all the 
 
 a rigorous account to him who is the homage and prayers he could offer up 
 
 sole disposer of crowns and sceptres." to God during his whole life." The 
 
 Abb Velley's Hist, of France, Vol. III. same sentiment is found in the Koran. 
 
 P- 65 - Hist of Timnr-Bec, Book II. ch. xlL 
 
 Timur-Bec declared (as he often be- 
 
 79
 
 14 OF THE SOVEREIGN. 
 
 BOOK i. prince will be on his guard even against his virtues. Let us 
 CHAP> IV- not say, with some writers, that private virtues are not the 
 virtues of kings a maxim of superficial politicians, or of 
 [ 14 ] those who are very inaccurate in their expressions. Good- 
 ness, 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, ke 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 in- 
 juries of a duke of Orleans." 
 
 g 40. Of his A political society is a moral person (Prelim. 2) inasmuch 
 representa- ag it has an understanding and a will, of which it makes use 
 tive charac- f or ^ con( j uc t; O f fa 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 sove- 
 reign. 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 
 ntmste? '* *" s own P erson a ^ tne ma jesty that belongs to the entire body 
 witiTthe ob- of the nation. 
 
 ligations of The sovereign, thus clothed with the public authority, with 
 the nation, every thing that constitutes the moral personality of the 
 ^ t d h i ^ ested nation, of course becomes bound by the obligations of that 
 rights nation, and invested with its rights. 
 
 | 42. His All that has been said in Chap. II. of the general duties 
 duty with of a nation towards itself particularly regards the sovereign, 
 respect jj e j s ^he depositary of the empire, and of the power of com- 
 vatioTami manding whatever conduces .to the public welfare; he ought, 
 perfection of therefore, as a tender and wise father, and as a faithful ad- 
 the nation, ministrator, to watch for the nation, and take care to preserve 
 
 80
 
 OF THE SOVEREIGN. 14 
 
 it, and render it more perfect ; to better its state, and to BOOK i. 
 secure it, as far as possible, against every thing that threatens CHAP - IY - . 
 its safety or its happiness. 
 
 Hence all the rights which a nation derives from its obli- g 43. His 
 gation to preserve and perfect itself, and to improve its state, rights in this 
 (see 18, 20, and 23, of this book) ; all these rights, I say, res P ect - 
 reside in the sovereign, who is therefore indifferently called [ 15 ] 
 the conductor of the society, superior, prince, &c. 
 
 We have observed above, that every nation ought to know $ 44. He 
 itself. This obligation devolves on the sovereign, since it is ought to 
 he who is to watch over the preservation and perfection of kD w the 
 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, de- 
 fects, advantages, and situation with regard to the neigh- 
 bouring states ; and they ought to acquire a perfect know- 
 ledge of the manners and general inclinations of their people, 
 their virtues, vices, talents, &c. All these branches of know- 
 ledge are necessary to enable them to govern properly. 
 
 The prince derives his authority from the nation ; he pos- g 45. The 
 sesses just so much of it as they have thought proper to intrust extent of his 
 him with.* If the nation has plainly and simply invested powen 
 him with the sovereignty, without limitation or division, he is 
 supposed to be invested with all the prerogatives, without Preroga- 
 which the sovereign command or authority could not be ex- tives of ma - 
 erted in the manner most conducive to the public welfare. Jesty< 
 These are called regal prerogatives, or the prerogatives of 
 
 But when the sovereign power is limited and regulated by g 45. The 
 the fundamental laws of the state, those laws show the prince prince 
 the extent and bounds of his power, and the manner in which ou s ht to 
 he is to exert it. The prince is therefore strictly obliged not 
 only to respect, but also to support them. The constitution f un da- 
 and the fundamental laws -are the plan on which the nation mental 
 has resolved to labour for the attainment of happiness ; the laws< 
 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 ' 
 
 * Neque enim se princeps reipublicaa the sovereign. Quod caput est, sit 
 
 et singulorum dominum arbitrabitur, principi persuasum, totius reipublicae 
 
 quamvis assentatoribus id in aurem majorem quam ipsius unius auctorita- 
 
 insusurrantibus, sed rectorem mercede tern esse : neque pessimis hominibus 
 
 a civibus designata, quam augere, nisi credat diversum affirmantibus gratifi- 
 
 ipsis volentibus, nefas existimabit. candi studio ; quce magna pernicies est 
 
 Ibid. c. v. From this principle it fol- Ibid, 
 lows that the nation is superior to 
 
 11 81
 
 15 OP THE SOVEREIGN. 
 
 BOOK T. the laws : and while it is his duty to restrain each daring 
 CHAP, iv. Y j i ator O f them, ought he himself to trample them under 
 
 foot?* 
 
 1 47. He If the prince be invested with the legislative power, he may, 
 may change accor( Ji n g to his wisdom, and when the public advantage re- 
 fnndamen- quires it, abolish those laws that are not fundamental, and 
 taL make new ones. (See what we have said on this subject, in 
 
 the preceding chapter, 34.) 
 
 48. He But while these laws exist, the sovereign ought religiously 
 ought to to maintain and observe them. They are the foundation of 
 wTd'observe ^ e public tranquillity, and the firmest support of the sove- 
 the existing reign authority. Every thing is uncertain, violent, and subject 
 laws. 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 esta- 
 blished 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, "f 
 g 49. in But it is necessary to explain this submission of the prince 
 
 he^ubit to the laWS * First ' he ou g ht ' as we nave J ust seen > to follow 
 to the 8 laws' 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 sub- 
 ject 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. 
 
 * In some countries, formal pre- past generations, who formerly made 
 cautions are taken against the abuse effectual use of arms and decrees to 
 of power. "Reflecting among other reduce within proper bounds such of 
 things (says Grotius), that princes are their sovereigns as had transgressed 
 often found to make no scruple of vio- the line of duty, whether through their 
 lating their promises under the stale own licentiousness or the artifices of 
 pretext of the public good, the people their flatterers. Thus it happened to 
 of Brabant, in order to obviate that John the Second ; nor would they con- 
 inconvenience, established the custom sent to make peace with him or his 
 of never admitting their prince to the successors, until those princes had en- 
 possession of the government without tered into a solemn engagement to 
 having previously made with him a secure the citizens in the enjoyment 
 covenant, that, whenever ho may hap- of their privileges." Annals of the 
 pen to violate the laws of the country, Netherlands, Book II. note, edit. A. D. 
 they shall be absolved from the oath 1797. 
 
 of obedience they had sworn to him, f A treatise on the right of the queen 
 
 until ample reparation be made for to several states of the Spanish mon- 
 
 the outrages committed. The truth archy, 1667, in 12mo, Part II. p. 191. 
 of this is confirmed by the example of
 
 OF THE SOVEREIGN. 
 
 16 
 
 I here speak of the laws that relate to the situation of indi- BOOK i. 
 viduals, and particularly of those that regulate the validity CHAP ' **' 
 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 [ 17 ] 
 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. 
 
 It is not sufficient that the prince be above the penal laws : ? 50. His 
 even the interest of nations requires that we should go some- P er ^ on " f a - 
 thing farther. The sovereign is the soul of the society ; if T i 
 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 ob- 
 struction 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 mal- 
 contents ; and ought the state to continue exposed to the dan- 
 ger 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.* Whatever a prince may be, it is an 
 enormous crime against a nation to deprive them of a sove- 
 reign whom they think proper to obey.f 
 
 * Since the above was written, France made by Damien to assassinate Louis 
 
 has witnessed a renewal of those hor- J5TF.] Note, edit. A.D. 1797. 
 rors. She sighs at the idea of having f In Mariana's work, above quoted, 
 
 given birth to a monster capable of I find (chap. vii. towards the end) a 
 
 violating the majesty of kings in the remarkable instance of the errors into 
 
 person of a prince, whom the qualities which we are apt to be led by a subtle 
 
 of his heart entitle to the love of his sophistry destitute of sound principles, 
 
 subjects and the veneration of foreign- That author allows us to poison a 
 
 ers. [The author alludes to the attempt tyrant, and even a public enemy, pro- 
 
 83
 
 17 OF THE SOVEREIGN. 
 
 BOOK i. But this high attribute of sovereignty is no reason why the 
 CHAP, iv. na tjp n should not curb an insupportable tyrant, pronounce 
 51. But sentence on him (still respecting in his person the majesty of 
 ma "curT ^ s ran ^) an< ^ withdraw itself from his obedience. To this 
 a tyrant, indisputable right a powerful republic owes its birth. The 
 and with- tyranny exercised by Philip II. in the Netherlands excited 
 draw itself those provinces to rise : seven of them, closely confederated, 
 obedience bravely maintained their liberties, under the conduct of the 
 heroes of the House of Orange ; and Spain, after several vain 
 [ 18 ] and ruinous efforts, acknowledged them sovereign and inde- 
 pendent 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 no- 
 body 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 com- 
 mand ; that the nation, by giving him absoulte authority, has 
 reserved no share of it to itself, and has submitted to his 
 discretion, &c. We might be content with answering, that 
 
 vided it bo done without obliging him, person who administered the poison. 
 
 either by force or through mistake or Ne cogatur tantum sciens aut impru- 
 
 ignorance, to concur in the act that dens sibi conscire mortem; quod esse 
 
 causes his own death, which would be nefas judicamus, veneno in potu aut 
 
 the case, for instance, in presenting him cibo, quod hauriat qui perimendus ost, 
 
 a poisoned draught. For (says he), in aut simili alia retemperato. A fine 
 
 thus leading him to an act of suicide, reason, truly ! Was Mariana disposed 
 
 although committed through ignorance, to insult the understandings of his read- 
 
 we make him violate the natural law ers, or only desirous of throwing a 
 
 which forbids each individual to take slight varnish over the detestable doc- 
 
 away his own life ; and the crime of trine contained in that chapter ? Note, 
 
 him who thus unknowingly poisons him- edit. A. D. 1797. 
 self redounds on the real author, the 
 84
 
 OF THE SOVEREIGN. 18 
 
 in this light there is not any sovereign who is completely and BOOK i. 
 fully absolute. But in order to remove all these vain subtle- CHAF ' "* 
 ties, 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 govern- 
 ment, 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 [ 19 ] 
 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 sove- 
 reign, 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.* It 
 
 * Dissimulandum censeo quatenus Henrico hujus abnepote ob ignaviam 
 
 salus publica patiatur, privatimque pravosque mores abdicate procerum 
 
 corruptis moribus princeps contingat; suffrages, primum Alfonsus ejus frater, 
 
 alioquin si rempublicam in periculum recte an secus non dispute, sed tamen ' 
 
 vocat, si patrise religionis contemptor in tenera setate rex est proclamatus : 
 
 existit, neque medicinam ullam re- deinde defuncto Alfonso, Elisabeths 
 
 cipit, abdicandum judico, alium sub- ejus soror, Henrico invito, renim sum- 
 
 stituendum ; quod in Hispania non mam ad se traxit, regio tantum nomine 
 
 semel fuisse factum scimus : quasi fera abstinens dum ille vixit. Mariana, de 
 
 irritata, omnium telis peti debet, cum, Rege et Regis Institut. Lib. I. c. iii. 
 
 humanitate abdicata, tyrannum induit. To this authority, furnished by Spain, 
 
 Sic Petro rege ob immanitatem dejecto join that of Scotland, proved by- the 
 
 publice, Henrieus ejus frater, quamvis letter of the barons to the pope, dated 
 
 ex impari matxe, regnum obtinuit Sic April 6, 1320, requesting him to pre- 
 
 H 85
 
 20 
 
 OF THE SOVEREIGN. 
 
 BOOK i. is above a century since the English took up arms against 
 CHAP. IY. their king, and obliged him to descend from the thr ne. 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 dis- 
 covered 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 abso- 
 lute by the laws, or was not ; because that right is derived 
 
 Tail 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 prin- 
 cipem regem et dominum nostrum, 
 dominum Robertum, qui pro populo et 
 hasreditate suis do manibus inimicorum 
 liberandis, quasi alter Maccabaeus aut 
 Josue, labores et taedia, inedias et pe- 
 ricula, laeto sustinuit animo. Quern 
 etiam divina dispositio, et ( juxta leges 
 et consuetudines nostras, quas usque 
 ad mortem sustinere volumus) juris 
 successio, et debitus nostrorum con- 
 sensus et assensus nostrum fecerunt 
 principem atque regem: cui, tanquam 
 illi per quern sains in populo facta est, 
 pro nostra libertate tuenda, tarn jure 
 qnam meritis tenemur, et volumus in 
 omnibus adhaerere. Quern, si ab in- 
 ceptis desistet, regi Anglorum aut 
 Anglis nos aut regnum nostrum volons 
 subjicere, tanquam inimicum nostrum 
 et sui nostrique juris subversorem, 
 statim espellere nitemur, et alium 
 regem nostrum, qui ad defensionem 
 nostram sufficiet, faciemus: quia, 
 quamdiu centum viri remanserint, nun- 
 quam Anglorum dominio aliquatenus 
 volumus subjugari. Non enim propter 
 gloriam, divitias, ant honores pugna- 
 mus, sed propter libertateni solummodo, 
 86 
 
 quam nemo, bonus nisi simul cum 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 bad violated their laws and privi- 
 leges." The author afterwards ob- 
 serves, 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 founda- 
 tion 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.
 
 OF THE SOVEREIGN. 20 
 
 from what is the object of all political society the safety of BOOK i. 
 the nation, which is the supreme laAV.* But, if the distinc- " AP ' IY '. 
 tion of which we are treating is of no moment with respect to 
 the right, it can he of none in practice, with respect to expe- 
 diency. 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 mutari, 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 Avaiting until it becomes extreme. 
 
 But however limited a prince's authority may be, he is 52. Arbu 
 conimonly very jealous of it; it seldom happens that he pa- tration be- 
 tiently suffers resistance, and peaceably submits to the judg- t T een the 
 ment of his people. Can he want support, while he is the ^^,,,.,8. 
 distributor of favours ? We see too many base and ambitious [ 2l ] 
 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 
 
 * Populi patroni non pauciora neque Est tamen salutaris cogitatio, nt sit 
 
 minora praesidia habent. Certe a repub- principibus persuasum, si rempublicam 
 
 lica, unde ortum habct regia pofcestas, oppresserint, si vitiis et foeditate intole- 
 
 rebus exigentibus, regens in jus vocari randi erunt, ea se conditione vivere, ut 
 
 potest, et, si sanitatem respuat, princi- non jure tantum, sed cum laude et 
 
 patu spoliari j neque ita in principem gloria, perimi possint Ibid. Note, edit, 
 
 jura potestatis transtulit, ut non sibi A. D. 1797. 
 majorem reservarit potestatem. Ibid, 
 cap. vi. 87
 
 21 OP THE SOVEREIGN. 
 
 BOOK i. of the confederated states, though each of them is truly sove- 
 
 CHAP. iv. re jg n an( j independent. 
 
 g 53. The As soon as a nation acknowledges a prince for its lawful 
 
 obedience sovereign, all the citizens owe him a faithful ohedience. He 
 
 which sub- neither govern the state, nor perform what the nation ex- 
 
 jects owe to i /> i HI -i n i 
 
 a sovereign, pects 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. 
 
 I 54. In Nevertheless this ought not to be entirely a blind obedi- 
 what cases ence. No engagement can oblige, or even authorize, a man 
 tbC ^tT y * v il a * e * ne l aw f na ture. All authors who have any re- 
 gard 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 exe- 
 cute 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."* The Count 
 [ 22 ] de Tende, Charny, and others, replied to those who brought 
 them the orders of the court, " that they had too great a re- 
 spect 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 op- 
 pose 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 com- 
 mands appear to them unjust or prejudicial. This would be 
 falling back into the state of nature, and rendering govern- 
 ment 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 sacri- 
 
 * Mezeray's History of France, vol. ii. p. 1107.
 
 OF THE SOVEREIGN. 22 
 
 ficed to the peace and safety of the state, on account of the BOOK * 
 great advantages obtained by living in society. It is pre- CHAF ' IV '- 
 sumed, as matter of course, that every citizen has tacitly en- 
 gaged 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 en- 
 gagements, 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 re- 
 quires 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 ex- 
 tremity."* 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 [ 23 ] 
 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 tranquillity 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 con- 
 cealed, 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 ex- 
 pense 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 
 
 * De Jure Belli & Pacis, lib. i. cap. iv. Z 11. n. 2. 
 
 12 H 2 89
 
 23 
 
 OF STATES ELECTIVE, 
 
 BOOS 
 CHAP, 
 
 g 55. Of 
 
 ministers. 
 
 K * 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. 
 
 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 surren- 
 der his authority to them. When a nation chooses a con- 
 ductor, it is not with a view that he should deliver up his 
 charge into other hands. Ministers ought only to be instru- 
 ments 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 sur- 
 rendered the 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 crown- 
 ing 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. 
 
 CHAP. V. 
 
 CHAP. Y. OF STATES ELECTIVE, SUCCESSIVE OR HEREDITARY, AND OF 
 THOSE CALLED PATRIMONIAL. 
 
 g 56. Of WE have seen in the preceding chapter, that it originally 
 
 ective belongs to a nation to confer the supreme authority, and to 
 
 ltes ' choose the person by whom it is to be governed. If it confers 
 
 [ 24 ] 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. Whe- It has been debated, whether elective kings and princes are 
 
 ther elective real sovereigns. But he who lays any stress on this circum- 
 
 kings are gtance must have only a very confused idea of sovereignty. 
 
 reigns. " ^ ne manner i n 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 
 
 90
 
 SUCCESSIVE, OR HEREDITARY, ETC. 24 
 
 chap. 1), and secondly, what is the extent of the power it has BOOK i. 
 intrusted to the prince. Whenever the chief of an independ- ... CHAP> T '- 
 ent state really represents his nation, he ought to he consid- 
 ered as a true sovereign ( 40), even though his authority should 
 be limited in several respects. 
 
 When a nation would avoid the troubles which seldom fail ? 58. Of 
 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, states. 
 according to the order and rules that appear most agreeable The ri g in 
 to that nation. The name of an Hereditary State or Kingdom jj 
 is given to that where the successor is appointed by the same sion> 
 law that regulates the successions of individuals. The Suc- 
 cessive Kingdom is that where a person succeeds according to a 
 particular fundamental law of the state. Thus the lineal suc- 
 cession, and of males alone, is established in France. 
 
 The right of succession is not always the primitive esta- % 59. Other 
 blishment of a nation ; it may have been introduced by the origins of 
 concession of another sovereign, and even by usurpation. But thls nght ' 
 when it is supported by long possession, the people are con- 
 sidered 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. 
 
 The same right, according to Grotius and the generality I 60. other 
 of writers, may be derived from other sources, as conquest, ^ c c h es Btil] 
 or the right of a proprietor, who, being master of a country, ^^m* to 
 should invite inhabitants to settle there, and give them lands, the same 
 on condition of their acknowledging him and his heirs for thing, 
 their sovereigns. But as it is absurd to suppose that a society 
 of men 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 ulti- 
 mately 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. 
 
 It thus remains an undeniable truth, that in all cases the 61. A na- 
 succession is established or received only with a view to the tion ma y 
 public Avelfare and the general safety. If it happened then ^e^oVtoe 
 that the order established in this respect became destructive succession. 
 to the state, the nation would certainly have a right to change 
 it by a new law. Salus populi suprema lex, the safety of [ 25 ] 
 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.* 
 
 * Ximirum, quod publics salutis bus exigentibus, immutari quid obstat? 
 causa et communi consensu statutum MARIANA, ibid. c. iy. 
 est,,eadem multitudinis voluntate, re- 91
 
 25 OF STATES ELECTIVE, 
 
 BOOK i. This pretended proprietary right attributed to princes is a 
 CHAP, v. c hj mera> 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.* 
 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 des- 
 potic 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 re- A nation may, for the same reason, oblige one branch who 
 nuncmtions. 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 per- 
 fectly 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 
 [ 26 ] the beginning of the reign of Elizabeth, most wisely excludes 
 from the possession of the crown every heir possessed of 
 
 * When Philip II. resigned the been nations who governed themselves 
 Netherlands to his daughter Isabella by popular assemblies, or by a senate ; 
 Clara Eugenia, it was said (according there have been others who intrusted 
 to the testimony of Grotius) that it was the general management of their con- 
 Betting a dangerous precedent, for a cerns to princes. For it is not to be 
 prince to treat free citizens as his pro- imagined, it was added, that legitimate 
 perty, and barter them away like do- sovereignties have originated from any 
 mestic slaves; that, among barbari- other source than the consent of the 
 ans, indeed, the extraordinary practice people, who gave themselves all up to 
 sometimes obtained of transferring go- a single person, or, for the sake of 
 vernments by will or donation, because avoiding the tumults and discord of 
 those people were incapable of discern- elections, to a whole family ; and those 
 ing the difference between a prince to whom they thus committed them- 
 and a master ; but that those, whom selves were induced, by the prospect 
 superior knowledge enabled to distin- of honourable pre-eminence alone, to 
 guish between what is lawful and what accept a dignity by which they were 
 is not, could plainly perceive that the bound to promote the general welfare 
 administration of a state is the pro- of their fellow-citizens in preference to 
 perty of the people (thence usually de- their own private advantage. GROTIUS. 
 nominated res-publica) ; and that, as in Hist of the Disturbances in the Ne- 
 every period of the world there have therlands, book ii. Edit. A. D. 1797. 
 02
 
 SUCCESSIVE, OR HEREDITARY, ETC. 26 
 
 another monarchy ; and thus the law of Portugal disqualifies BOOK i. 
 every foreigner who lays claim to the crown by right of blood."* CHAP, v. 
 
 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 prin- 
 ciple, 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 junc- 
 ture, to the detriment of the state, and abandon in imminent 
 danger a nation that had put itself under his care.f 
 
 In ordinary cases, when the state may follow the established 63. The 
 rule without being exposed to very great and manifest danger, orde . r of 8UO ' 
 it is certain that every descendant ought to succeed when the ought com 
 order of succession calls him to the throne, however great monly to be 
 may appear his incapacity to rule by himself. This is a con- kept. (23) 
 sequence 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 inconve- 
 niences 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."J 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) 
 
 * Spirit of Laws, book xxvi. chap. J Memorial in behalf of Madame de 
 xxiii., where may be seen very good po- Longueville, concerning the principality 
 litical reasons for these regulations. of Neufchatel, in 1672. 
 
 -f- See further on. (23) See this doctrine illustrated in 1 
 
 Bla. Com. 247-8. C. 
 
 93
 
 27 
 
 BOOK I. 
 CHAP. V. 
 
 64. Of 
 
 regents. 
 
 g 65. indi- 
 visibiiity of 
 overeign- 
 
 66. Who 
 are to de- 
 cide dis- 
 
 successon 
 to a sove- 
 reignty. 
 
 OF STATES ELECTIVE, 
 
 These reasons have the greater weight, since the law or 
 the state may remedy the incapacity of the prince by nomi- 
 nating 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) 
 
 The principles we have just established , pecting the suc- 
 cessive 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 con- 
 trary 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. 
 
 But when a prince has united several different nations 
 under his authority, his empire is then properly an assem- 
 blage 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 con- 
 sidered as a single kingdom ; it has become indivisible, and a 
 fundamental law has declared it so. That law, wisely pro- 
 viding for the preservation and splendour of the kingdom, 
 irrevocably unites to the crown all the acquisitions of its kings. 
 
 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 sub- 
 ject to no other judge but God, have maintained that the 
 competitors for the crown, while their right remains uncer- 
 tain, ought either to come to an amicable compromise, enter 
 into articles among themselves, choose arbitrators, have re- 
 course 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 philoso- 
 
 (24) Ante, p. 26, n. C. 
 * But it is to be observed that those 
 partitions were not made without the 
 94 
 
 approbation and consent of the respecf- 
 ive states.
 
 SUCCESSIVE, OR HEREDITARY, ETC. 
 
 pliers,* what can be expected from the human mind, when BOOK 
 seduced by interest or fear ? What ! in a question that con CHAP ' 
 cerns 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 juris- 
 diction, 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 suc- 
 cessor? We may affirm, then, without hesitation, that the 
 decision of this grand controversy belongs to the nation, and 
 to the nation alone. 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 con- 
 sented to the transaction or compromise princes not acknow- 
 ledged, 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 exer- 
 cise it, either by itself or by it 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 
 
 * Ncsico quomodo nihil tarn absurde philosophorum. Cicero, do Divinat. 
 dici potest, quod non dicatur ab aliquo lib. ii. 
 
 95
 
 28 OF STATES ELECTIVE, 
 
 BOOK r. support, by an infinite number of examples, a truth so evi- 
 
 ~. CHAP. v * dent 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 
 
 L 29 ] the king of England (Edward III.), and that those states, 
 
 though subject to him in whose favour they granted the de- 
 
 cision, were nevertheless the judges of the dispute." 
 
 * 
 
 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 re- 
 lations of Martin, king of Arragon, who asserted that the 
 kingdom belonged to them.f 
 
 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.! 
 The states of the principality of Neufchatel have often, in 
 the form of a juridical sentence, pronounced on the succes- 
 sion to the sovereignty. In the year 1707, they decided be- 
 tween 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 better to secure the succession in a certain and inva- 
 the right to riable order, it is at present an established rule in all Christian 
 the succes- s t a tes (Portugal excepted), that no descendant of the sovereign 
 noTtTde- can succee d to the crown, unless he be the issue of a marriage 
 pend on the that is conformable to the laws of the country. As the nation 
 judgment has established the succession, to the nation alone belongs the 
 of a foreign p 0wer O f acknowledging those who are capable of succeeding ; 
 power ' and consequently, on its judgment and laws alone must de- 
 pend 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 de- 
 pend 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 obstruc- 
 tions ; so that a prince of its communion cannot in certain 
 cases be 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 expe- 
 rience. Some rebels published abroad that she owed her birth 
 to Bertrand de la Cueva, the king's favourite ; and notwith- 
 
 * Answer in behalf of Madame de J See the same memorial, which 
 
 Longueville to a memorial in behalf of quotes P. Labbe's Royal Abridgment, 
 
 Madame de Nemours. t Ibid. page 501, Ac. 
 96
 
 SUCCESSIVE, OR HEREDITARY, ETC. 29 
 
 standing the declarations and last will of that prince, who BOOK i. 
 explicitly and invariably acknowledged Jane for his daughter, CHAP ' Y ' 
 and nominated her his heiress, they called to the crown Isa- 
 bella, Henry's sister, and wife to Ferdinand, heir of Arragon. 
 The grandees of Jane's party had provided her a powerful [ 30 ] 
 resource, by negotiating a marriage between her and Alphon- 
 sus, 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. Every thing succeeded with Isabella, and the un- 
 fortunate Jane took the veil, in order to secure, by this heroic 
 sacrifice, the peace of Castile.* 
 
 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 Re- 
 formation had not been happily established, when the pope 
 presumed to declare Queen Elizabeth illegitimate, and incapa- 
 ble 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 findf two acts, in which 
 that prince condemns, as an invasion of the imperial autho- 
 rity, 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. 
 
 Finally, there are states whose sovereign may choose his ? 68 - Of 
 successor, and even transfer the crown to another during his state . s cal . le , d 
 
 ' , & patrimonial. 
 
 * I take this historical passage from says he, nobis rite debitam et conces- 
 
 M. Du Port de Tertre's Conspiracies, sum. 
 
 To him I refer ; for I have not the ori- P. 156. Forma dispensations super 
 
 ginal historians by me. However, I do amnitate consanguinitatis inter Lu- 
 
 not enter into the question relating to dovicum marchionem Brandenburg et 
 
 the birth of Jane : this would here be Margaretham ducissam Kurinthitc, nee 
 
 of no use. The princess had not been non legitimatio liberorum procreando- 
 
 declared a bastard according to the rum, fautic per dom. Ludovic. IV. Rom. 
 
 laws ; the king acknowledged her for imper. 
 
 his daughter ; and besides, whether she It is only human law, says the empe- 
 
 was or was not legitimate, the incon- ror, that hinders these marriages intra 
 
 veniences resulting from the pope's re- gradus affinitatis sangninis, prsesertim 
 
 fusal still remained the same with re- intra fratres et sorores. De cujus legis 
 
 spect to her and the king of Portugal. prseceptis dispensare solummodo pertinet 
 
 Note, edit. 1797. ad auctoritatem imperatoris seu prinei- 
 
 { P. 154. Forma divortii matrimo- pis Romanorum. He then opposes and 
 
 nialis inter Johannern filium regis Bo- condemns the opinion of those who dare 
 
 hemiae et Margaretham ducissam Ka- to say that these dispensations depend 
 
 rinthiae. This divorce is given by the on ecclesiastics. Both this act and the 
 
 emperor on account of the impoten- former are dated in the year 1341. 
 
 oy of the husband, per auctoritatem, Note, edit. A. D. 1797. 
 
 13 I 97
 
 30 OF STATES ELECTIVE, 
 
 BOOK i. life: these are commonly called patrimonial t kingdoms or 
 .-CHAP. Y ' 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 
 [ 31 ] 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. 
 
 I 69. Every But when a prince chooses his successor, or when he cedes 
 true sove- the crown to another, properly speaking, he only nominates, 
 reignty is jyy virtue of the power with which he is, either expressly or 
 e ' 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 accord- 
 ing 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 subject- 
 ing 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 sub- 
 sists : 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,* 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 Gyrene 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 
 
 * Grotius De jure Belli et Pacis, lib. i. cap. iii. I 12.
 
 SUCCESSIVE, OR HEREDITARY, ETC. 31 
 
 people resisting a similar bequest of their sovereign, and BOOK i. 
 whose resistance had been generally condemned as unjust and CHAP ' Y> . 
 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 princi- 
 palities 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 L "* J 
 made a traffic of the rights they possessed over those terri- 
 tories : 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 alien- 
 ating the state can never belong to the sovereign, unless it 
 be expressly given him by the entire body of the people.* 
 Neither are we to presume that he possesses a right to nomi- 
 nate 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. 
 
 If the power of nominating his successor is intrusted to the 70. Duty 
 sovereign, he ought to have no other view in his choice but of a prince 
 the advantage and safety of the state. He himself was es- W ^ 18 J|~ 
 tablished only for this end ( 39) ; the liberty of transferring nominate 
 his power to another could then be granted to him only with his suc- 
 the same view. It would be absurd to consider it as a prero- cessor. 
 gative 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 intrust 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 Ro- 
 man emperors, who had no male children, appointed a succes- 
 sor by adoption. To this custom Rome was indebted for a * 
 
 * The pope, opposing the attempt them." On which occasion the French 
 made upon England by Louis, the son nobles unanimously exclaimed, that they 
 of Philip Augustus, and alleging, as his would, to their last breath, maintain 
 pretext, that John had rendered himself this truth, " that no prince can, of his 
 a vassal of the holy see, received for own private will, give away his king- 
 answer, among other arguments, " that dom, or render it tributary, and thus 
 a sovereign had no right to dispose of enslave the nobility." Velly's Hist of 
 his states without the consent of his France, vol. iii. p. 491. 
 barons, who were bound to defend 
 
 99
 
 32 
 
 PRINCIPAL OBJECTS OF 
 
 BOOK I. 
 CHAP. V. 
 
 71. He 
 must have 
 at least a 
 tacit rati- 
 fication. 
 
 [33] 
 
 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 ? 
 
 We may go still farther, and boldly assert, that, as the 
 safety of the whole nation is deeply interested in so import- 
 ant 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 noto- 
 riously unworthy of the crown, it is not at all probable that 
 vast empire would blindly submit to so pernicious an appoint- 
 ment. And who shall presume to blame a nation for refus- 
 ing to run headlong to ruin out of respect to the last orders 
 )f 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. 
 
 ties of the 
 sovereign. 
 
 CHAP. VI. 
 
 CHAP, vi. PRINCIPAL OBJECTS OF A GOOD GOVERNMENT ; AND FIRST 
 TO PROVIDE FOR THE NECESSITIES OF THE NATION. 
 
 72. The AFTER these observations on the constitution of the state, 
 object of so- let us now proceed to the principal objects of a good govern- 
 ment. 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 
 He ought to against all external violence ( 15). The nation, or its con- 
 procure ductor, should first apply to the business of providing for all 
 plenty. the wants of the people, and producing a happy plenty of all 
 the necessaries of life, with its conveniences and innnocent 
 and laudable enjoyments. (25) As an easy life without lux- 
 
 (25) See the general doctrine, that the at large, 2 Malthus, 433 ; 2 Smith, W. N. 
 
 happiness of a people depends on the 200 ; 2 Paley, Mor. Phil. 345 ; Sir J. 
 
 quantity of productive labour and em- Child on Trade, 167-8 ; and Tucker on 
 
 ployment, and the consequent return Trade, part ii. sections 4, 7, 8 ; 1 Chit- 
 
 of produce and remuneration, discussed ty's Commercial Law, 1, Ac. C. 
 100
 
 A GOOD GOVERNMENT. 33 
 
 ury contributes to the happiness of men, it likewise enables BOOK i. 
 them to labour with greater safety and success after their CHAF ' YI> 
 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. 
 
 To succeed in procuring this abundance of every thing, it 73. To 
 is necessary to take care that there be a sufficient number of take care 
 able workmen in every useful or necessary profession. (26) J* a * JJjJJ 8 
 An attentive application on the part of government, wise re- ci * * t 8 n nn [_ 
 gulations, and assistance properly granted, will produce this ber of work- 
 effect, without using constraint, which is always fatal to in- men. 
 dustry. 
 
 Those workmen that are useful ought to be retained in 74. To 
 the state ; to succeed in retaining them, the public authority prevent the 
 has certainly a right to use contraint, if necessary. (27) 
 Every citizen owes his personal services to his country ; and a t h a t 
 mechanic, in particular, who has been reared, educated, and useful, 
 instructed in its bosom, cannot lawfully leave it, and carry to 
 a foreign land that industry which he acquired at home, un- 
 less his country has no occasion for him, (27) or he cannot 
 there obtain the just fruit of his labour and abilities. Em- [ 34 ] 
 ployment 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, ea- -/,:;,. , 
 couragement, &c., and to leave the rest to that natural love 
 felt by all men for the places of their birth. 
 
 As to those emissaries who come into a country to entice \ 75. Emis- 
 away useful subjects, the sovereign has a right to punish them sarie s who 
 severely, and has just cause of complaint against the power entice them 
 by whom they are employed. 
 
 In another place, we shall treat more particularly of the 
 general question, whether a citizen be permitted to quit the 
 
 (26) There were in England many this rule, 5 Geo. I. c. 27; 23 Geo. II. 
 enactments enforcing this supposed c. 13 ; 14 Geo. III. c. 71 ; 4 Bla. Com. 
 policy, and prohibiting various work- 160 ; but repealed by 5 Geo. IV. c. 97. 
 men from leaving the kingdom. See 5 C. 
 
 Geo. I. c. 27; 23 Geo. II. c. 13; 14 (28) See also the power of prevent- 
 
 Geo. III. c. 71 ; 4 Bla. Com. 160. But, ing a subject, or even a foreigner, going 
 
 according to more modern policy, these abroad. Flack v. Holm, 1 Jac. & Walk. 
 
 enactments were repealed by 5 Geo. IV. Rep. 405, and post, $ 222 and Book II. 
 
 c. 97.-C. | 108.-C. 
 
 (27) See the English acts enforcing 
 
 1 2 101
 
 34 OF THE CULTIVATION OF THE SOIL. 
 
 BOOK i. society of which he is a member. The particular reasons 
 CHAP. vr. concern } n g useful workmen are sufficient here. 
 
 1 76. La- The state ought to encourage labour, to animate indus- 
 bour and try, (29) to excite abilities, to propose honours, rewards, privi- 
 musTbYen ^ e 8 es > an( ^ so * or( ^ er matters that every one may live by his 
 couraged. 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 pro- 
 fession. Can such a state fail of being powerful and happy ? 
 
 CHAP VII. 
 
 OF THE CULTIVATION OF THE SOIL. (31) 
 
 77. The OF all the arts, tillage, or agriculture, is doubtless the most 
 
 utility of useful and necessary, as being the source whence the nation 
 
 tillage. (31) derives it s 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. 
 
 78. Regu- This object then deserves the utmost attention of the go- 
 lations ne- yernment. The sovereign ought to neglect no means of ren- 
 thisTespect Bering the land under his jurisdiction as well cultivated as 
 possible. He ought not to allow either communities or pri- 
 vate persons to acquire large tracts of land, and leave them 
 For the dis- uncultivated. Those rights of common, which deprive the pro- 
 tribution of prietor of the free liberty of disposing of his land which will 
 land - not allow him to enclose and cultivate it in the most advan- 
 
 [ 35 ] tageous manner ; those rights, I say, are inimical to the wel- 
 fare 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) 
 
 (29) Ante, $ 72, note (25). C. gislative enactments respecting the cul 
 
 (30) How far the interference of the tivation of the soil or employment of 
 legislature is advisable, and when see its produce, each individual being left 
 the authorities and arguments collected, to his own discretion ; but to prevent 
 1 Chitty's Commercial Law, 4 to 7, and the injurious sale of farming produce, 
 post, $ 98. C. thereby impoverishing the land, there is 
 
 (31) As to the subject of this chapter, an express enactment enforcing public 
 see further authorities, Chitty's Com- policy in that respect. See 56 Geo. III. 
 mercial Law, vol. i. chap. 1. C. c. 50, and its recitals. In France there 
 
 (32) In England there are few le- are express provisions punishing indi- 
 102
 
 OF THE CULTIVATION OF THE SOIL. 
 
 35 
 
 The government ought carefully to avoid every thing ca- BOOK i. 
 pable of discouraging the husbandman, or of diverting him 
 from the labours of agriculture. Those taxes those excessive ? 79 - For 
 and ill-proportioned impositions, the burden of which falls j io e n p jf ^us- 
 almost entirely on the cultivators and the oppressions they bandmen. 
 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 culti- 
 vated 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 dis- 
 courage 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. 
 
 Another abuse injurious to agriculture is the contempt so. Hus- 
 cast upon the husbandman. The tradesmen in cities even ban "* ry 
 the most servile mechanics the idle citizens consider him J!f ced n ^ B 
 that cultivates the earth with a disdainful eye ; they humble honourable 
 and discourage him ; they dare to despise a profession that light 
 feeds the human race the natural employment of man. A 
 little 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 : agricul- 
 ture 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 multi- 
 tude of inhabitants who at first sight appear to the traveller 
 too numerous for the space they occupy. 
 
 The cultivation of the soil deserves the attention of the 81. The 
 government, not only on account of the invaluable advantages cultivation 
 that flow from it, but from its being an obligation imposed by JJJJ ' 
 nature on mankind. The whole earth is destined to feed its obligation. 
 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 [ 36 ] 
 Tartars) who inhabit fertile countries, but disdain to culti- 
 vate their lands, and choose rather to live by plunder, are 
 wanting to themselves, are injurious to all their neighbours, 
 
 riduals who suffer injurious weeds to ceedingly salutary if introduced into 
 
 ,eed on land to the injury of their neigh- this country. _ C. 
 oours, a regulation which would be ex- 
 
 103
 
 36 OF THE CULTIVATION OP THE SOIL. 
 
 BOOK i. an( j deserve to be extirpated as savage and pernicious beasts 
 CHAP. vii. rj^ere 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 hu- 
 man 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 terri- 
 tories 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. 
 
 g 82. Of The establishment of public granaries is an excellent re- 
 public gra- gulation for preventing scarcity. But great care should be 
 naries. 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 be- 
 ing 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 car- 
 ried 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 incon- 
 venience 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 after- 
 wards obliged to raise (and this produces great disorders 
 in commerce, by putting it out of its course) ; or he accus- 
 toms 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 regu- 
 larly 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 pur- 
 chased 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. 
 
 104
 
 OF COMMERCE. 37 
 
 BOOK I. 
 CHAP. VIII. 
 
 CHAP. VIII. r 37 -, 
 
 OF COMMERCE. (33) 
 
 IT is commerce that enables individuals and whole nations g 83 Of 
 to procure those commodities which they stand in need of, home and 
 but cannot find at home. Commerce is divided into home foreign 
 and foreign trade. (34) The former is that carried on in the 1 "" 16 ' 
 state between the several inhabitants ; the latter is carried on 
 with foreign nations. 
 
 The home trade of a nation is of great use ; it furnishes all g 34 utility 
 the citizens with the means of procuring whatever they want, of the home 
 as either necessary, useful, or agreeable ; it causes a circu- tr&de - 
 lation 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. 
 
 The same reasons show the use of foreign trade, which is g 35. utility 
 moreover attended with these two advantages : 1. By trad- of foreign 
 ing with foreigners, a nation procures such things as neither trade - 
 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, 
 counter-balanced the fortune, courage, and greatness of Rome. 
 Holland has amassed immense sums in her marshes ; a com- 
 pany 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 in- 
 habitants 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. 
 
 Nations are obliged to cultivate the home trade, first, f 86. Obli- 
 because it is clearly demonstrated from the law of nature, e ati . on to 
 that mankind ought mutually to assist each other, and, asf ultlvat6 ! he 
 far as in their power, contribute to the perfection and hap- 
 piness of their fellow-creatures : whence arises, after the in- 
 troduction 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, 
 
 (33) See the authorities and doctrines carrying trade, formerly one of the prin- 
 on the advantage of commerce and com- cipal sources of British wealth and 
 mercial regulations, 1 Chitty's Commer- power. See authorities, 1 Chitty's Com- 
 cial Law, 1 to 106.-C. mercia l Law, 7, 8, Ae.-C. 
 
 (34) To these are to he added the 
 
 I* 105 
 
 195165
 
 CHAP. V 
 
 OF COMMERCE. 
 
 BOOKJ. society being established with the view that each may pro- 
 cure 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 
 [ 38 ] formed. Finally, being advantageous to the nation, it is a 
 duty the people owe to themselves, to make this commerce 
 flourish. 
 
 87. Obii- For the same reason, drawn' from the welfare of the state, 
 gation to and also to procure for the citizens every thing they want, a 
 carry on nation is obliged to promote and carry on a foreign trade. 
 S? n ^ a ^ *k e m d ern stat es, 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 mer- 
 chandises. In a very sensible production,* may be seen the 
 valuable advantages that kingdom has derived from such 
 judicious regulations. 
 
 88. Foun- Let us now see what are the laws of nature and the rights 
 dation of of nations in respect to the commerce they carry on with 
 the laws of eac fa O th er . 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 intro- 
 duction of private property, it became a duty to sell to each 
 other, at a fair price, what the possessor himself has no occa- 
 sion for, and what is necessary to others ; because, since that 
 introduction of private property, no one can, by any other 
 means, procure the different things that may be necessary or 
 useful to him, and calculated to render life pleasant and agree- 
 Right of able. Now, since right springs from obligation (Prelim. 3), 
 buying. 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 
 
 * Remarks on the Advantages and in concluding the commercial treaty 
 
 Disadvantages of France and Great with France in 1786, <fec., 2 Smith's W. 
 
 Britain with respect to Commerce. of N., 226 to 252 ; Tucker's Pamphlet 
 
 (35) See also s. 13, and Id. note, Cui Bono, and 1 Chilly's Commercial 
 ante. C. Law, 73 to 79. This seems to be con- 
 
 (36) The moral obligation of a na- sidered by the ablest writers on the law 
 tion, in time of peace, to permit com- of nations, to be a moral duty but of 
 mercial intercourse with other states, imperfect obligation, so that in truth 
 and to allow other states to buy her each state has a right, when so disposed, 
 surplus produce, or to sell or exchange to decline any commercial intercourse 
 their own surplus produce, is illus- with other states. Id. ibid et supra. 
 trated in Mr. Pitt's celebrated speech C. 
 
 106
 
 OF COMMERCE. 38 
 
 subject to those laws in its national capacity ; so that the BOOK i. 
 natural and necessary law of nations is no other than the law CHAP - Ym - 
 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 oc- 
 casion for them. This is the foundation of the right of com- 
 merce between different nations, and, in particular, of the 
 right of buying. (36) 
 
 We cannot apply the same reasoning to the right of selling % 89. Right 
 such things as we want to part with. Every man and every of selling, 
 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. [ 39 ] 
 
 Every state has consequently a right to prohibit the en- $ 90. Pro- 
 trance of foreign merchandises; and the nations that are hibition of 
 affected by such prohibition have no right to complain of it, f ? re1 ^ mer " 
 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 ex- 
 pense. 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, she would have cause to consider this conduct as a 
 mark of ill-will shown in this instance, and to complain of it 
 on that footing. But it would be very difficult for the ex- 
 cluded nation to judge with certainty that the state had no 
 solid or apparent reason for making such a prohibition. 
 
 By the manner in which we have shown a nation's right to $ 91. Na- 
 buy of another what it wants, it is easy to see that this right ture of the 
 is not one of those called perfect, and that are accompanied "^ of 
 with a right to use constraint. Let us now distinctly explain uymg ' 
 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 
 
 (36) See note (36) preceding page. porting prohibited goods, or permitted 
 
 (37) When such a prohibition has goods without paying imposed duties, 
 been established, any violation of it in Bird v. Appleton, 8 Term Rep. 562; 
 general subjects the ship and goods to Wigmore v. Reed, 5 Term Rep. 599 ; 
 Bcizure and confiscation, as in case of Holman v. Johnson, Cowp. 344. C. 
 smuggling, whether by exporting or im- { Church v. Hubbart, 2 Cranch, 187. } 
 
 107
 
 <jy OF COMMERCE. 
 
 BOOK i. can conveniently sell them to you ; and you have no right to 
 CBAP. Yin. d e t erm i ne w hether 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, hut you 
 must submit to it : and you cannot attempt to force me, with- 
 out violating my natural right, and doing me an injury. The 
 right of buying 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 pro- 
 per place in the following book, Chap. IX. 
 
 g 92. Every Since then a nation cannot have a natural right to sell her 
 nation is to merchandises to another that is unwilling to purchase them, 
 f h it S wiii W s ^ nce sne nas on ty an imperfect right to buy what she wants 
 engaglin ^ others, since it belongs only to these last to judge whether 
 commerce, it be proper for them to sell or not ; and finally, since com- 
 merce 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 
 [ 40 ] 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. (37) 
 
 g 93. How Men and sovereign states may, by their promises, enter 
 a nation ac- i n to a perfect obligation with respect to each other, in things 
 f U Tri "hfto wnere na ture has imposed only an imperfect obligation. A 
 a^oreign nation, not having naturally a perfect right to carry on a 
 trade. commerce with another, may procure it by an agreement or 
 treaty. This right is then acquired only by treaties, and re- 
 lates 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 A simple permission to carry on commerce with a nation 
 
 mission of 
 
 commerce. ( 3 ^) ^ itn res P ecfc to commercial nations; and they are not even per- 
 intercourse with the colonies of a parent mitted to land in the country, or to 
 state of Europe, all the European nations enter with their vessels within cannon 
 which have formed settlements abroad shot of the shore, except only in cases 
 have so appropriated the trade of those of urgent necessity. This has now he- 
 settlements to themselves, either in ex- come generally the understanding and 
 clusirdy permitting their own subjects law of nations as regards colonies ; and 
 to partake of it, or in granting a mo- the ships, <fec. violating the rule are 
 nopoly to trading companies, that the liable to seizure. Marten's Law of 
 colonies themselves cannot legally carry Nations, 150 to 152 ; Bird v. Appleton, 
 on hardly any direct trade with other 8 Term Rep. 562 ; 1 Chitty's Commercial 
 powers; consequently the commerce in Law, 79, 211 to 244, 470, 631. C. 
 those possessions is not free to foreign 
 108
 
 OF COMMERCE. 40 
 
 gives no perfect right to that commerce. For if I merely BOOK i. 
 and simply permit you to do any thing, I do not give you CHAP ' Tm ' 
 any right to do it afterwards in spite of me : you may make 
 use of my condescension as long as it lasts ; but nothing pre- 
 vents me from changing my will. As then every nation has 
 a right to choose whether she will or will not trade with an- 
 other, 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 com- 
 merce ; 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. 
 
 We have seen what are the rights that nations derive from \ 95 - De- 
 nature with regard to commerce, and how they may ac( l u i re ia^g*i at 
 others by treaties : let us now examine whether they can ing to con ^_ 
 found any on long custom. To determine this question in a merce are 
 solid manner, it is necessary first to observe, that there are subject to 
 rights which consist in a simple power : they are called in 
 Latin, jura merce 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 pre- [ 41 ] 
 scription, 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 pre- 
 sumed, from my having long forborne to use it, that I there- 
 fore intend to abandon it. This right is then imprescriptible, 
 unless I have been forbidden or hindered from making use 
 
 (38) See further, Grotius, 158 ; Poffendorf, B. 4, chap. 5, s. 10. p. 168 : 1 Chit. 
 Com. Law, 80, 81. C. 
 
 E 109
 
 41 OF COMMERCE. 
 
 BOOK i. of it, and have obeyed with sufficient marks of consent. Let 
 CHAP. vnr. ug SU pp 0gej f or instance, that I am entirely at liberty to grind 
 my corn at any mill I please, and that during a very con- 
 siderable 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 re- 
 solving 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 aifords 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 merce 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 mer- 
 chandise, and of selling their own wherever people are willing 
 to buy them. Although the English have from time imme- 
 morial 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) 
 
 g 96. Tmpre- What lins been just said may be applied to the rights of 
 Bcriptibiiity commerce acquired by treaties. If a nation has by this method 
 of rights procured the liberty of selling certain merchandises to another, 
 
 founded on r , , , v i- .1 i i / 
 
 treaty. sne " oes n0 ^ ^ ose ner rl 8 nt > though a great number of years 
 
 (40) The perpetual obligation to censured by some as evidently advan- 
 purchase Port wines from Portugal in tageous to Portugal and disadvantage- 
 exchange for British woollen cloths was ous to Great Britain. 2 Smith, W. N. 
 established by the celebrated treaty of 338 to 341 ; Tucker on Trade, 356 ; 
 Methuen, A. n. 1703 ( so called because and 1 Chitty's Commercial Law, 619. 
 concluded by Sir P. Methuen), with C. 
 Portugal : a treaty which has been 
 110
 
 OF COMMERCE. 
 
 42 
 
 are suffered to elapse without its being used ; because this BOOK i. 
 right is a simple power, jus merce facidtatis, which she is at CHAP - YIU - 
 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. 
 
 Commerce is a common benefit to a nation ; and all her ? 97. Of 
 members have an equal right to it. Monopoly, therefore, in mon P ol i es > 
 general, is contrary to the rights of the citizens. However, complniesf 
 this rule has its exceptions, suggested even by the interest of W uh exciu- 
 the nation : and a wise government may, in certain cases, sive privi- 
 justly establish monopolies. There are commercial enter- le s es - ( 41 ) 
 prises that cannot be carried on without an energy that 
 
 (41) See the advantages and dis- 
 advantages resulting from commercial 
 companies and foreign monopolies, and 
 upon colonization in general, 1 Chit- 
 ty's Commercial Law, 631 to 689 ; and 
 see some sensible observations on the 
 Impolicy of Exclusive Companies, 
 Evans on Statutes, Class III. title In- 
 surance, 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 specu- 
 lating and enterprising individuals to 
 embark their capitals in expensive un- 
 dertakings, probably generally bene- 
 ficial in the result, but which could 
 not be pursued by single individuals, 
 it may be expedient originally to afford 
 them a monopoly ; but 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 encourag- 
 ing the creation of foreign companies. 
 A celebrated diplomatist, and an acute 
 observer of human nature (M. Talley- 
 rand), has justly said, that the art of 
 putting men into their proper places is, 
 perhaps, the first science of govern- 
 ment ; but that of finding the proper 
 
 place for the discontented is assuredly 
 the most difficult ; and the presenting 
 to their imagination in a distant coun- 
 try, perspective views, on which their 
 thoughts and desires may fix them- 
 selves, is one of the solutions of this 
 difficulty. In the development of the 
 motives which determined the estab- 
 lishment 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 tran- 
 quilliti/. 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 re- 
 newed hope, the bad, the idle, and the 
 turbulent may be rendered useful mem- 
 bers of society. Our colonies, then, pre- 
 sent 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 inte- 
 rests will be overlooked by a wise legis- 
 lature or government. C. 
 
 Ill
 
 42 OF COMMERCE. 
 
 BOOK i. requires considerable funds, which surpass the ability of in- 
 CFIAP. YIII. dividuals. There are others that would soon become ruinous, 
 were they not conducted with great prudence, with one regu- 
 lar 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 ene- 
 mies 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 in- 
 dividual 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 sove- 
 reign 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 com- 
 merce 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 
 [ 43 ] done in England. 
 
 g 98. Ba- The conductor of a nation ought to take particular care to 
 lance of encourage the commerce that is advantageous to his people, 
 attention of an( ^ to 8U PP ress or l a j restraints upon that which is to their 
 government disadvantage. (42) Gold and silver having become the com- 
 
 in this 
 
 respect (42 ) Tnig is a que8t ionabk policy. 125, 201, 204; 3 Id. 183 j Malthus, 
 
 It has been laid down by some of the 196; 2 Paley, Mor. Phil. 400, 402; 
 
 most eminent writers on political econo- 3 Hume, Hist. 403 ; Sir J. Child on 
 
 my, that every active interference of Trade, 2d part, 46, 81, 86, 132, 154 to 
 
 the legislature with its subjects, by 164 ; and Buchanan's Observations on 
 
 prohibiting or restraining any particu- Smith's W. of N. 2d ed. vol. 4, page 
 
 lar branch of honest labour, or by en- 156, 157 ; Introduc. 3 Lord Sheffield's 
 
 couraging any particular branch at the Strictures on Navigation System, 3 
 
 expense of the others, whether in agri- Adolph. 163, and see ante, chap. 6, 
 
 culture or commerce, has uniformly re- and 1 Chitty's Commercial Law, 4 
 
 tarded the advances of public opulence, to 7. 
 
 and that the sound policy of a legislator But as regards the encouragement 
 is not to impose restrictions or regula- or discouragement of any particular 
 tions upon domestic industry, but ra- branch of trade, there is another mo- 
 ther to prevent them from being im- tive for interference which powerfully 
 posed by the contrivance or folly of influences, viz. the increase of revenue, 
 others. See 2 Smith, W. N. 118, for whenever the luxury or other wish 
 112
 
 PUBLIC WAYS. 43 
 
 mon standard of the value of all the articles of commerce, the BOOK T - 
 trade that brings into the state a greater quantity of these CHAP - YI "-. 
 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. 
 
 Of all the measures that a wise government may take with 2 99 . Im- 
 this view, we shall only touch here on import duties. When ^ dutie8 - 
 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 discou- 
 rage as will prevent their consumption. Thus, French wines 
 are charged with very high duties in England, while the 
 duties on those of 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 con- 
 duct that is not very wise and extremely just; and France 
 has no reason to complain of it every nation having an un- 
 doubted 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. 
 
 CHAP. IX. 
 
 OF THE CARE OF THE PUBLIC WAYS OF COMMUNICATION, CHAP, ix. 
 AND THE RIGHT OF TOLL. 
 
 THE utility of highways, bridges, canals, and, in a word, 100. TJti- 
 of all safe and commodious ways of communication, cannot Ht y of hi s h - 
 be doubted. They facilitate the trade between one place and ^ s '^ *" 
 another, and render the conveyance of merchandise less ex- na 
 pensive, as well as more certain and easy. The merchants 
 are enabled to sell at a better price, and to obtain the pre- 
 ference ; an attraction is held out to foreigners, whose mer- 
 chandises are carried through the country, and diffuse wealth 
 in all the places through which they pass. France and Hol- 
 land feel the happy consequences of this from daily expe- . 
 rience. (44) 
 
 of the people introduces a foreign, or and export duties, bounties and draw- 
 even a domestic article to greater con- backs, which, since Vattel wrote, have 
 sumption, a moderate charge upon the become extensive branches of law, 
 same, though in a degree restrictive upon highly important to be studied. See an 
 the consumption, will in general be a attempt of the editor to arrange them, 
 proper tax. Ibid. C. in 1 Chitty's Commercial Law, Index, 
 
 (43) This is a very slight allusion to titles Import and Export. C. 
 the very important regulation of import (44) But although, since Vattel 
 15 K2 113
 
 PUBLIC WAYS. 
 
 One of the principal things that ought to employ the at- 
 ition of the government with respect to the welfare of the 
 
 2 ioi. Duty public in general, and of trade in particular, must then relate 
 menUn^h' * ^ e highways, canals, &c., in which nothing ought to be 
 respect. * 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 
 [ 44 ] patroles everywhere watch over the safety of travellers : mag- 
 nificent roads, bridges, and canals, facilitate the communica- 
 tion between one province and another : Lewis XIV. joined 
 the two seas by a work worthy of the Romans. 
 
 1 102. its The whole nation ought, doubtless, to contribute to such 
 ^ nthls 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 ex- 
 perience had no sooner made them sensible of their true 
 interest, than they blessed the authors of the undertaking. 
 | 103 ^ F un - 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 
 
 wrote, France greatly advanced in the ply of proper food in return for his 
 
 improvement of her roads, yet England labour. C. 
 
 has surpassed all other nations in the (46) As to the right to toll, Ac., see 
 facilities of internal intercourse by new Grotius, b. ii. chap. 2, 14, p. 154 ; 
 canals, railways, and other improve- Puffendorff, book iii. chap. 3, g 6, p. 
 ments sanctioned by the legislature. 29, 30; 1 Bla. Com. 287; 1 Chitty's 
 With respect to which, see the enact- Commercial Law, 103 to 106; 2 Id. 
 ments and decisions, 2 Chitty's Commer- 139, 140. It has been observed, that 
 cial Law, 127 to 141. C. of all the taxes with which the inhabi- 
 (45) This position of a government's tants of this country are burdened, 
 right to oblige the people to labour on there is perhaps none so odious as the 
 the roads as thus stated, would startle turnpike duty. On the continent no 
 an Englishman. In England there is such interruption in travelling is ex- 
 no such direct power. The 34 Geo. 3, perienced, and tolls have been abolished 
 c. 74, B. 4, it is true, requires each oc- on the northern side of the metropolis, 
 cupier to send his carts and horses, and London. Lord Byron, in his eulogy 
 labourers, to work on the roads; but upon English roads, humorously ob- 
 then, if he neglect to do so, he is sub- serves 
 
 ject only to a moderate penalty, just .. what , dei.ghtfoi thing-, a rornpike rd, 
 
 sufficient to enable the surveyor to hire so .mooth, level, .uchamodeof .having 
 
 the like assistance elsewhere: and as The earth, M .carce the eagle in the broad 
 
 ,. Air can accomplish with bis wide wing, waving. 
 
 tO men, even a pauper IS Subject to no Had .uch been cut in Phaeton', time, Ibe god 
 
 penalty for refusing to work, excepting Had told hi. n to Mtbfjr hi. craving 
 that, if he do so, he will not then be j l H'^"*,^^ *,?* ** "" ' 
 entitled to parochial relief. If he work, cut. x. 7& c. 
 
 he is entitled to pay in money, or sup- 
 114
 
 PUBLIC WAYS. 44 
 
 his merchandise, should help to defray the expense of these BOOK i. 
 useful establishments, by a moderate contribution : and if the _ CHAP - " 
 state thinks proper to exempt the citizens from paying it, she 
 is under no obligation to gratify strangers in this particular. 
 
 But a law so just in its origin frequently degenerates into gi<)4. Abuse 
 great abuses. There are countries where no care is taken of this ri g ht - 
 of the highways, and where nevertheless considerable tolls ^ 
 are exacted. A lord of a manor, who happens to possess a 
 stripe 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 be- 
 coming 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 in- 
 herits 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. 
 
 (47) This position requires explana- 1 Burr. 292. In the absence of such 
 
 tion and qualification. As respects a custom or prescription, no right to ap- 
 
 public navigable river, every part of proach a river over private grounds 
 
 the navigable stream must ever remain exists. Parthericke v. Mason, 2 Chitty's 
 
 free and open from its communication Rep. 658 ; Wyatt v. Thompson, 1 Esp. 
 
 with the sea to its extreme navigable Rep. 252. { Ohess v. Manown, 3 Watts, 
 
 point; but the absolute right to ap- Rep. 219; Cooper v. Smith, 9 Serg. A 
 
 proach it on each side, can only be Rawle, 26. } So, if a private individual 
 
 by public and general ways. Conse- make and repair a bridge over a river, 
 
 quently, if an individual have land ad- he may insist upon any person using 
 
 joining a river, he may reasonably it paying him a toll, as in the instance 
 
 refuse permission to any person to go of Putney and Fulham bridge. In 
 
 over it to approach the river, and de- these cases the demand of an exorbi- 
 
 mand any sum he thinks fit for the tant toll may be illiberal, but is no 
 
 permission, unless there be a public more illegal than a nation's refusing 
 
 way over it Nor have the public to sell its superfluous produce, or to 
 
 any right at common law to tow on admit free passage through its country, 
 
 the banks of an ancient navigable The right to pass at a moderate toll 
 
 river; Ball v. Herbert, 3 Term Rep. is a moral but imperfect right, ante, 
 
 253 ; though it may exist by custom g 91. C. 
 
 or prescription. Pierce v. Fauconberge, (48) See n. 47, ante. 
 
 115
 
 45 OF MONEY AND EXCHANGE. 
 
 BOOK I. 
 CHAP. X. 
 
 CHAP. X. 
 
 OF MONEY AND EXCHANGE. (49) 
 
 105. Es- IN the first ages, after the introduction of private property, 
 tabiishment p e0 pl e exchanged their superfluous commodities and effects 
 oney ' for those they wanted. Afterwards gold and silver hecame 
 the common standard of the value of all things : and to pre- 
 vent 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, 
 g 106. Duty The impression on the coin becoming the seal of its stand- 
 f the nation ar( j an( j ^jgh^ a moment's reflection will convince us that 
 withTelpect tne coinage of money ought not to be left indiscriminately 
 to the coin, 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 neces- 
 sities 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 nation 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 con- 
 tracts 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.f necessity, would fall solely on those who re- 
 ceived this arbitrary money in payment, which would be unjust. 
 Besides, experience has shown that such a resource is destruc- 
 tive to trade, by destroying the confidence both of foreigners 
 and citizens raising in proportion the price of every thing 
 
 (49) The modern law of nations, and Id. 84 to 120 ; 1 Chitty's Commercial 
 
 the municipal law of England, as to Law, 583 ; 2 Id. 179 to 187, and statutes 
 
 coin, bullion, and money, will be found and decisions there collected. C. 
 collected in 1 Bla. Com. 276 to 280; 4 
 116
 
 OF MONEY AND EXCHANGE. 
 
 45 
 
 and inducing every one to lock up or send abroad the good BOOK r. 
 
 old specie ; whereby a temporary stop is put to the circulation CHAP ' * 
 
 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 [ 46 ] 
 
 taxes and contributions to support the pressing exigencies of 
 
 the state.* 
 
 Since the state is surety for the goodness of the money g 107. Their 
 and its currency, the public authority alone has the right of rights in this 
 coining it. Those who counterfeit it, violate the rights of respect, 
 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 preroga- 
 tive 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 be- 
 
 * 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 circum- 
 stance a secret from the people : wit- 
 ness the ordinance of Philip de Valois 
 in 1350, by which he ordered Tournois 
 Doubles to be coined 2d. 5$gr. fine, 
 which was, in fact, a debasement of 
 the coin. In that ordinance, address- 
 ing 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 bank- 
 ers nor others may, by your means, ac- 
 quire any knowledge of it ; for if, through 
 you, it comes to be known, you shall be 
 punished for the offence in such man- 
 ner 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 en- 
 gaged in the coinage to coin white 
 Denicrs Id. 12gr. 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 in- 
 justice. The same author, speaking 
 of the debasement of coin, or the va- 
 
 rious 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 in- 
 troduction and circulation of foreign 
 coin raise the price of every thing- 
 impoverish individuals diminish the 
 revenue, which is paid in specie of in- 
 ferior 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 prac- 
 tise 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 ex- 
 pecting to be obliged to make a further 
 reduction in order to retrieve his affairs, 
 but knowing himself to be, in con- 
 science, 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 reve- 
 nues and dower for the same purpose.* 
 Note, edit A. D. 1797. 
 
 117
 
 46 
 
 OF MONEY AND EXCHANGE. 
 
 BOOK r. longs to it. In both cases they do an injury to the sove- 
 CHAP ' *' reign ; for the public faith being surety for the money, the 
 sovereign alone has a right to have it coined. For this rea- 
 son the right of coming is placed among the prerogatives of 
 majesty, and Bodinus relates,* that Sigismund Augustus, 
 king of Poland, having granted this privilege to the duke 
 of Prussia, in the year 1543, the states of the country passc>d 
 a decree in which it was asserted that the king could not 
 grant that privilege, it being inseparable from the crown. 
 [ 47 ] The same author observes, that, although many lords and 
 bishops of France had formerly the privilege of coining mo- 
 ney, 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 From the principles just laid down, it is easy to conclude, 
 one nation 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) 
 g 109. Of There is another custom more modern, and of no less use 
 exchange, to commerce than the establishment of coin, namely exchange, 
 and the laws or tne tra ffi c O f bankers, by means of which a merchant re- 
 merce." m ^ s i mm 6 nse 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 commer- 
 cial laws established in the country. 
 
 may injure 
 another in 
 the article 
 of coin. 
 
 * In his Republic, book i. chap. x. 
 
 (50) This is a sound principle, which 
 ought to be extended so as to deny ef- 
 fect to any fraud upon a foreign nation 
 or its subjects. But in England a nar- 
 row 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. A 
 Ryl. 190. { Cambioso'g 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 sal- 
 vage for bringing homo his captured 
 vessel, by deceptively inducing the ene- 
 my to release the vessel on his giving a 
 ransom bill, payment of which he took 
 care to countermand in London. 2 Dod- 
 son's R. 74. 
 
 118
 
 A GOOD GOVERNMENT, ETC. 47 
 
 BOOK I. 
 CHAP. XI. 
 
 CHAP. XI. 
 
 SECOND OBJECT OF A GOOD GOVERNMENT, TO PROCURE THE 
 TRUE HAPPINESS OF THE NATION. 
 
 LET us continue to lay open the principal objects of a good no. A n- 
 government. What we have said in the five preceding chap- tion ou s^ 
 ters relates to the care of providing for the necessities of the aft^teown 
 people, and procuring plenty in the state : this is a point of happiness. 
 necessity ; but it is not sufficient for the happiness of a na- 
 tion. 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 na- 
 tions 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. 
 
 To succeed in this, it is necessary to instruct the people to ? m. in- 
 seek felicity where it is to be found ; that is, in their own struction - 
 perfection, and to teach them the means of obtaining it. 
 The sovereign cannot, then, take too much pains in instruct- r 43 i 
 ing and enlightening his people, and in forming them to use- 
 ful 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 learn- 
 ing 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: in- 
 capable of being slaves, they are faithful subjects. 
 
 The first impressions made on the mind are of the utmost g 112. Edu- 
 importance for the remainder of Hfe. In the tender years cation of 
 of infancy and youth, the human mind and heart easily re- youth ' 
 ceive the seeds of good or evil. Hence the education of 
 youth is one of the most important affairs that deserve the 
 
 119
 
 48 SECOND OBJECT OF 
 
 BOOK 
 CHAP. XI. 
 
 x - attention of the government. It ought not to be entirely 
 left to fathers. The most certain way of forming good citi- 
 zens 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 citi- 
 zens will not neglect to take advantage of them. How ad- 
 mirable 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 im- 
 proved 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 legis- 
 lator and philosopher entered into the most minute details 
 respecting the education of youth,* being persuaded that on 
 that depended the prosperity and glory of his republic. 
 113. Arts "Who can doubt that the sovereign the whole nation 
 m sciences. OU gj^ ^ Q encoura g e the arts and sciences ? To say nothing of 
 the many useful inventions that strike the eye of every be- 
 holder, 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 an- 
 [ 49 ] swer 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 be- 
 stow upon them. 
 
 In the present age, the utility of literature and the polite 
 arts is pretty generally acknowledged, as is likewise the neces- 
 sity 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, 
 
 * See Xenophon, Lacedcemon. RespuUica. 
 120
 
 A GOOD GOVERNMENT, ETC. 49 
 
 protected, and rewarded while living, and after his death, his BOOK * 
 tomb was placed among those of kings. France also, in this CHAP - " 
 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 be- 
 fore 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 ! 
 
 I speak of the freedom of philosophical discussion, which g 114. Free- 
 is the soul of the republic of letters. What can genius pro- dom of phi- 
 duce, when trammelled by fear ? Can the greatest man that ^ s P hl _ cal 
 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 innu- 
 endo-mongers of indirectly attacking the received opinions ? 
 I know that liberty has its proper bounds that a wise govern- 
 ment 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 em- [ 50 ] 
 ployed on philosophy, ought a malicious adversary to be list- 
 ened 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 Avritings 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. 
 Ciceroa senator, aconsul, 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 hap- 
 piness and that of his fellow-citizens : but he observes that 
 "to destroy superstition is not destroying religion ; for," says 
 he, 'Jit becomes a wise man to respect the institutions and 
 religious ceremonies of his ancestors : and it is sufficient to 
 
 16 L 121
 
 SECOND OBJECT OF 
 
 contemplate the beauty of the world, and the admirable order 
 e ce i es t;i a ]i bodies, in order to be convinced of the exist- 
 ence of an eternal and all-perfect being, who is entitled to the 
 veneration of the human race."* 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, "f 
 
 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 in- 
 temperate zeal did not take pains to discover a pretended 
 venom lurking in them. It is by him who endeavours to place 
 [ 51 ] 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. 
 
 g 115. Lore To instruct the nation is not sufficient : in order to conduct 
 
 of virtue, ft to happiness, it is still more necessary to inspire the people 
 
 rence of"*" w ^ * ne l ve f virtue, and the abhorrence of vice. Those 
 
 vice, to be wno are deeply versed in the study of morality are convinced 
 
 excited. 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 
 
 * Nam, ut vere loquamur, superstitio 
 fusa per gentes oppressit omnium fere 
 animos, atque omnium imbecillitatom 
 occupavit. . . . multum enim et nobismet 
 ipsis ct nostris profuturi videbamur, si 
 earn funditus sustulissemus. Nee vero 
 (id enim diligenter intelligi volo) su- 
 peretitione tollenda religio tollitur. 
 Nam et majorum institute tueri, sacris 
 caoremoniisquo rctinendis, sapientis est: 
 et esse praestantem aliquam acternamque 
 naturam, et earn suspiciendam, admi- 
 randamque hominum generi,pulchritudo 
 mundi, ordoque coelestium cogit confi- 
 teri. De Divinatione, lib. li. 
 122 
 
 f Harum ego rcligionem imllam un- 
 quam contemnendam putavi : mihique 
 ita persuasi, Romulum auspiciis, Nu- 
 mam sacris constitutis, fundamenta 
 
 jecisse nostrae civi 
 profecto sine sum 
 rum immortalium t 
 
 sentiat. Fae nui 
 quid tu sentias: a 
 
 is, quae nunquam 
 
 placatione Deo- 
 
 .11 esse potuisset. 
 
 Habes, Balbe, quid otta, quid pontifex 
 
 ego intelligam, 
 e enim philosopho 
 
 rationem accipere debeo religionis ; ma- 
 joribus autem nostris, etiam nulla ra- 
 tione reddita, credere. De Natura Deo- 
 rum, lib. iii.
 
 A GOOD GOVERNMENT, ETC. 51 
 
 with his duty and the dictates of his conscience, in engaging BOOK 
 him to watch attentively over an affair of such importance. CHAP ' "' 
 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 distri- 
 bution of favours, posts, and dignities, all have the same ten- 
 dency. 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 attain- 
 ing 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. 
 
 It is an incontestable truth, that the virtues of the citizens ? 116. The 
 constitute the most happy dispositions that can be desired by natlon ma 7 
 a just and wise government. Here then is an infallible cr i- C overthe 
 terion, by which the nation may judge of the intentions of intention of 
 those who govern it. If they endeavour to render the great its rulers. 
 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 ; he 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 [ 52 ] 
 more haughty and intractable than their master : they feel 
 not for his people the same love that he feels: "let the na- 
 tion 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 crea- 
 ture is sometimes chastised by the magistrate ; but the minis- 
 
 123
 
 52 SECOND OBJECT OF 
 
 BOOK i. ter, who is infinitely more guilty, wallows in wealth, and is 
 CHAP. xi. j nveg ^ e( j w ^h nonour and authority. Posterity, however, will 
 do him justice, and detest the corruptor of a respectable nation. 
 117. The If governors endeavoured to fulfil the obligations which the 
 state, or the j aw Q f na t ure i a ys upon them with respect to themselves, and 
 g" n , ^ught" i n tne "* character of conductors of the state, they would be 
 to perfect incapable of ever giving into the odious abuse just mentioned. 
 its under- Hitherto we have considered the obligation a nation is under 
 standing ^ Q ac q u j re knowledge and virtue, or to perfect its understand- 
 ing and will ; that obligation, I say, we have considered in re- 
 lation 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 repre- 
 sentative 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 vir- 
 tues, to the safety of the state, the end of evil society, 
 g us. And He ought even to direct, as much as possible, all the abili- 
 to direct the ties, the knowledge, and the virtues of the citizens to this 
 
 andtirtSs S reat 6I1 ^ ' S that ^^ ma> ? n0t ^ ^ USe ^ to tne ^~ 
 
 of the citu viduals who possess them, but also to the state. This is one 
 zens to the of the great secrets in the art of reigning. The state will be 
 welfare of powerful and happy, if the good qualities of the subject, pass- 
 tie 8ociet y- ing 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 The grand secret of giving to the virtues of individuals a 
 for their urn so advantageous to the state, is to inspire the citizens 
 mtry. ^^ an ar( j en |. j ove f or their country. It will then naturally 
 [ 53 ] 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 too easily effaces it from the hearts of the sub- 
 jects ; can self-love attach an individual to the affairs of a 
 
 124
 
 A GOOD GOVERNMENT, ETC. 53 
 
 country where every thing is done with a view to a single per- BOOK i. 
 son ? far from it : we see, on the contrary, that free nations CHAP - xr " 
 
 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. 
 
 The love and affection a man feels for the state of which 120. in 
 he is a member, is a necessary consequence of the wise and individuals, 
 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 advan- 
 tage 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 ? 
 
 The nation in a body ought doubtless to love itself, and desire 121. in 
 
 its own happiness as a nation. The sensation is too natural the nation 
 
 to admit of any failure in this obligation : but this duty relates r state it- 
 
 i -i i ii i , . i v self, and in 
 
 more particularly to the conductor, the sovereign, who repre- the goye _ 
 sents the nation, and acts in its name. He ought to love it re i g n. 
 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.* That great prince and Louis XII. are illustrious 
 models of the tender love a sovereign owes to his subjects. 
 
 The term, Country, seems to be pretty generally known : g 122. DO- 
 but as it is taken in different senses, it may not be unuseful finition of 
 to give it here an exact definition. It commonly signifies the the term 
 State of which one is a member : in this sense 1 we have used country - 
 it in the preceding sections ; and it is to be thus understood [ 54 ] 
 in the law of nations. 
 
 In a more confined sense, and more agreeably to its ety- 
 mology, 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 coun- 
 try, that is, to become a member of another society; so, 
 
 * His country being attacked by the should remain victorious, Codrus dis- 
 Heraclidse, he consulted the oracle of guised himself, and, rushing into the 
 Apollo ; and being answered, that the battle, was killed by one of the enemy's 
 people whose chief should be slain soldiers. 
 
 L2 125
 
 OBJECT OF A GOOD GOVERNMENT. 
 
 shameful 
 and crimi- 
 nal to in- 
 jure our 
 country. 
 
 124. The 
 glory of 
 good citi- 
 zens. (51) 
 
 Examples. 
 
 BOOK i. when we speak in general of the duty to our country, the 
 
 CHAP, xi. 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 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 en- 
 gagements, 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 see traitors 
 to their country only among those men who are solely sensi- 
 ble to base interest, who only seek their own immediate ad- 
 vantage, 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. 
 
 On the contrary, those generous citizens are loaded with 
 honour and praise, who, not content with barely avoiding a 
 failure in duty 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 Ar- 
 nold 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 de- 
 voted it as a general, as an undaunted warrior, not as a su- 
 perstitious 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 ray family : follow me, and act in consequence of what 
 [ 55 ] you see me do." At these words he ranged them in that form 
 which the Romans called cuncus, 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.* 
 
 (51) See observations, poet, $ 190, 1386. The Austrian army consisted 
 
 p. 92. C. of four thousand chosen men, among 
 
 * This affair happened in the year whom were a great number of princes, 
 126
 
 OF PIETY AND RELIGION. 55 
 
 BOOK I. 
 CHAP. XII. 
 
 CHAP. XII. 
 
 OF PIETY AND RELIGION. 
 
 PIETY and religion have an essential influence on the 125. Of 
 happiness of a nation, and, from their importance, deserve a piety, 
 particular chapter. Nothing is so proper as piety to strength- 
 en 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 approba- 
 tion 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 sup- 
 port of a lawful authority ; and, in the sovereign's heart, it 
 is the pledge of the people's safety, and excites their confi- 
 dence. 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 ? 
 
 We have already insinuated that piety ought to be at- 126. It 
 tended with knowledge. In vain would we propose to please ou g ht to be 
 God, if we know not the means of doing it. But what a al *? n ? ed 
 
 ., i , ,, ,. , with know- 
 
 deluge of evils arises, when men, heated by so powerful a ledge 
 
 motive, are prompted to take methods that are equally false [ 56 ] 
 and pernicious ! A blind piety only produces superstitious 
 bigots, fanatics, and persecutors, a thousand times more dan- 
 gerous 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 
 
 counts, and nobility of distinguished noblemen of the best families in Ger- 
 
 rank, all armed from head to foot. many. History of the Helvetic Con- 
 
 The Swiss were no more than thirteen federacy, by DE WATTEVJLLE, vol. i. p. 
 
 hundred men, ill armed. In this battle, 183. TSCHUDI. ETTERLIN. SCHODE- 
 
 the duke of Austria perished, with two LER. K.t: B.MAX. [See the national 
 
 thousand of his forces, in which num- consequences of this valour, stated post, 
 
 ber were six hundred and seventy-six 190, pp. 92-3.] 
 
 127
 
 56 OF PIETY AND RELIGION. 
 
 BOOK i. trampled under foot the most sacred laws of nature. It was 
 CHAP, xii. f rom a refinement of piety, that the anabaptists of the six- 
 teenth century refused all obedience to the powers of the 
 earth. James Clement and Ravaillac,* those execrable par- 
 ricides, thought themselves animated by the most sublime 
 devotion. 
 
 127. Of Religion consists in the doctrines concerning the Deity and 
 
 religion in- ^ e things of another life, and in the worship appointed to 
 
 externaT *k e honour of the Supreme Being. So far as it is seated in 
 
 the heart, it 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. 
 
 g 128. Every man is obliged to endeavour to obtain just ideas of 
 
 Rights of God, to know his laws, his views with respect to his crea- 
 
 individuals. turegj an( j the en( j f()r w kj ch they were create( J. M an (Joubt- 
 leSS 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 
 Liberty of his mind. This short explanation is sufficient to prove that 
 conscience. man } s 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 neces- 
 sary 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. Pub- But we should take care not to extend this liberty beyond 
 lie establish- jt s j us t bounds. In religious affairs a citizen has only a 
 "8 nt to ke free from compulsion, but can by no means claim 
 that of openly doing what he pleases, without regard to the 
 [ 57 ] consequences it may produce on society. (52) The establish- 
 ment of religion by law, and its public exercise, are matters 
 of state, and are necessarily under the jurisdiction of the 
 
 * The former assassinated Henry III. to have been an impostor, and a mur- 
 
 of France ; the latter murdered his sue- derer in principle, and a fanatic, is an 
 
 cessor, Henry IV. indictable misdemeanor at common law. 
 
 (52) AVith respect to these in Eng- Rex v. Waddington, 1 Barn. & Cress. 26. 
 
 land, and punishments for the viola- And as to modern regulation, see 4 Bla. 
 
 tion, see 4 Bla. Com. 41 to 66. Bias- Com. 443. C. 
 phemy, or a libel, stating our Saviour 
 128
 
 OF PIETY AND RELIGION. 5 
 
 political authority. If all men are bound to serve God, the BOOK ] 
 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 nation . 
 she judges best, to the nation it belongs to determine what 
 religion she will follow, and what public worship she thinks 
 proper to establish. 
 
 If there be as yet no religion established by public autho- $ 130. when 
 rity, the nation ought to use the utmost care, in order to there is as 
 know and establish the best. That which shall have the ap- y e * no esta - 
 probation of the majority shall be received, and publicly esta- JJj d r< 
 Wished by law ; by which means it will become the religion 
 of the state. But if a considerable part of the nation is ob- 
 stinately bent upon following another, it is asked What does 
 the law of nations require in such a case ? Let us first re- 
 member 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 re- 
 ligions 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 be- 
 tween the two former, of which the Swiss have furnished ex- 
 amples. The cantons of Glaris and Appenzel were, in the 
 sixteenth century, each divided into two parts : the one pre- 
 served the Romish religion, and the other embraced the Refor- 
 mation ; 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 dif- 
 ferent religion from that established by the nation be incon- 
 siderable ; 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 con- 
 sciences. 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. 
 
 When the choice of a religion is already made, and there is ? 131. When 
 one established by law, the nation ought to protect and sup- there * M 
 17 129
 
 58 OF PIETY AND RELIGION. 
 
 BOOK 
 CHAP. 
 
 T - port that religion, and preserve it as an establishment of the 
 y- greatest importance, without, however, blindly rejecting the 
 religion. 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 of 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 
 attempt 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 re- 
 ceives 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 com- 
 mon, 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. Du- We have thus given a brief compendium of the duties and 
 ties and rights of a nation with regard to religion. Let us now come 
 sovereign & * * nose f tne sovereign. These cannot be exactly the same 
 with regard as those of the nation which the sovereign represents. The 
 to religion, 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 laAvs relating to 
 religion is no part of his office, and does not belong to the au- 
 thority 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 even obliged, to employ all his 
 
 130
 
 OP PIETY AND RELIGION. 59 
 
 power to hinder the introduction of one which he judges per- BOOK i. 
 nicious to morality and dangerous to the state. For he ought CHAP - xn - 
 to preserve his people from every thing that may be injurious 
 to them ; and so far is a new doctrine from being an excep- 
 tion 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 es- 
 tablished. 
 
 The prince, or the conductor, to whom the nation has in- g 133. 
 trusted the care of the government and the exercise of the wh ere 
 sovereign power, is obliged to watch over the preservation of ther * s , a , 
 
 i T i i i_v i j i j i_ established 
 
 the received religion, the worship established by law, and has religion . 
 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 inter- 
 fere : 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 pre- 
 tended crimes against God, the punishment of which exclu- 
 sively 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 penal- 
 ties 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 frail mor- 
 tals 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 
 citizen* let us give them, for the common advantage, the 
 power of punishing whatever is injurious to charity in so- 
 ciety. It appertains not to human justice to become the aven- 
 ger of what concerns the cause of Gf-od.'f Cicero, who was as * 
 able and as great in state affairs as in philosophy and elo- 
 quence, thought like the Duke of Sully. In the laws he pro- 
 poses relating to religion, he says, on the subject of piety 
 and interior religion, " if any one transgresses, God will re- 
 venge it:" but he declares the crime capital that should be 
 
 * The Duke de Sully ; see his Me- f Deorum injuriae diis curse. Tacit. 
 moirs digested by M. de 1'Ecluse, vol. v. Ann. book i. c. 73. 
 pp. 135, 136. 
 
 131
 
 5y OF PIETY AND KELIGION. 
 
 BOOK i. committed against the religious ceremonies established for pub 
 
 CHAP. xii. jj c a g- a j rg? an( j j n w hj c h the whole state is concerned.* The 
 
 [ 60 ] wise Romans were very far from persecuting a man for his 
 
 creed ; they only required that people should not disturb the 
 
 public order. 
 
 134. Ob- The creeds or opinions of individuals, their sentiments with 
 jects of his respect to the Deity, in a word, interior religion should, 
 ^e^^n like piety, be the object of the^ prince's attention: he should 
 he ought to neglect no means of enabling his subjects to discover the truth, 
 employ. and of inspiring them with good sentiments ; but he should 
 employ for this purpose only mild and paternal methods."!* 
 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 rea- 
 son, many will allow but one and the same religion. A pru- 
 dent 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 But, in general, we may boldly affirm that the most cer- 
 toieration. tain and equitable means of preventing the disorders that may 
 ( 53 ) be occasioned by difference of religion, is a universal tolera- 
 
 tion of all religions which contain no tenets that are danger- 
 ous either to morality or to the state. Let interested priests 
 declaim ! they would not trample under foot the laws of hu- 
 manity, 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 dis- 
 turb 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. 
 
 * Qui secus faxit, Deus ipse vindex gib. lib. i. What a fine lesson does 
 
 erit Qui non paruerit, capitale this pagan philosopher give to Chris- 
 
 esto. De Legib. lib. ii. tians ! 
 
 f Quas (religiones) non metu, sed (53) See the modern enactments, 4 
 
 ea conjunctione quae est homini cum Bla. Com. 440, 443 ; Id. 52, 53, in the 
 
 Deo, conservandas puto. Cicero de Le- notes. C. 
 132
 
 OF PIETY AND RELIGION. 60 
 
 If, in spite of the prince's care to preserve the established BOOK i. 
 religion, the entire nation, or the greater part of it, should CHAP ' XI1 ' 
 
 be disgusted with it, and desire to have it changed, the sove-? 136 - What 
 reign cannot do violence to his people, nor constrain them in oughttodo 
 an affair of this nature. The public religion was established w hen the 
 for the safety and advantage of the nation : and, besides its nation is re- 
 proving inefficacious when it ceases to influence the heart, the s lved to 
 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 [ 61 
 they think proper to profess. 
 
 But at the same time it is very just that the prince should 2 137. 
 have the liberty of continuing in the profession of his own fe ' ence 
 religion, without losing his crown. Provided that he protect 
 the religion of the state, this is all that can be required of a prince of 
 him. In general, a difference of religion can never make tis crown, 
 any prince forfeit his claims to the sovereignty, unless a fun- 
 damental law ordain it otherwise. The pagan Romans did 
 not cease to obey Constantine when he embraced Christian- 
 ity ; nor did the Christians revolt from Julian after he had 
 quitted it.* 
 
 We have established liberty of conscience for individuals 138. Da- 
 ( 128). However, we have also shown that the sovereign t ! ei ? and , x , 
 
 >. , , .' , ,,. G , rights of the 
 
 has a right, and is even under an obligation, to protect and S0 v er eign 
 support the religion of the state, and not suffer any person reconciled 
 to attempt to corrupt or destroy it, that he may even, ac- with those 
 cording to circumstances, permit only one kind of public ? f the sub " 
 worship throughout the whole country. Let us reconcile je 
 those different duties and rights, between which it may be 
 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 reli- 
 gion 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 know- 
 ledge, 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 
 
 * When the chief part of the people nevertheless still retained all her rights. 
 in the principality of Neufchatel and The state counsel enacted ecclesiastical 
 Vallangin embraced the reformed re- laws and constitutions similar to those 
 ligion in the sixteenth century, Joan of of the reformed churches in Switzerland, 
 Hochberg, their sovereign, continued to and the princess gave them her sane- 
 live in the Roman Catholic faith, and tion. 
 
 M 133
 
 61 OF PIETY AND RELIGION. 
 
 c^p K xn ma y k e pernicious to society. These are immutable precepts 
 CHAP. xii. ^ t ^ e j aw O f na t ure . th e precept that enjoins public wor- 
 ship 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 ap- 
 pointed for the edification of men in glorifying God : but it 
 counteracts that end, and ceases to be laudable, on those oc- 
 [ 62 ] casions 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. 
 
 g 139. The The prodigious influence of religion on the peace and wel- 
 fare of society incontrovertibly proves that the conductor of 
 have the in- * ne state ought to have the inspection of what relates to it, 
 spection of and an authority over the ministers who teach it. The end 
 the affairs O f society and of civil government necessarily requires that 
 of f ellg ! on ' he who exercises the supreme power should be invested with 
 rUy over a ^ the rights without which he could not exercise it in a 
 those who manner the most advantageous to the state. These are the 
 teach it prerogatives of majesty ( 45), of which no sovereign can di- 
 vest 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 en- 
 gine 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 necessi- 
 ties, 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 de- 
 termine 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 na- 
 tion 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 regu- 
 lating 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 sove- 
 reign ; and why should God, who calls him by his providence
 
 OF PIETY AND RELIGION. t>2 
 
 to watch over the safety and happiness of a whole nation, de- c * K n 
 prive 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 dis- 
 position. Among the Jews, neither the king nor any other 
 person could make any innovation in the law of Moses ; hut 
 the sovereign attended to its preservation, and could check 
 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 obe- 
 dience to the superior powers are there clearly and expressly 
 enjoined. It were in vain to object to us the example of the [ 63 ] 
 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. 
 
 The sovereign ought, likewise, to watch attentively, in order 2 14 ^- ^ 
 to prevent the established religion from being employed to ^entth9 
 sinister purposes, either by making use of its discipline to a b us e of tb 
 gratify hatred, avarice, or other passions, or presenting its received re- 
 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 con- 
 sisted 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 neigh- 
 bour ; 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 Crea- 
 tor, 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 Hu- 
 rons. 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, there- 
 fore, soon destroyed by the Iroquois, whom they had before 
 been accustomed to conquer.* 
 
 To the prince's inspection of the affairs and concerns of 
 
 * History of New France, books v. vi. viL 
 
 135
 
 63 OF PIETY AND RELIGION. 
 
 BOOK i. religion we have joined an authority over its ministers : with- 
 ^^^ out the latter power, the former would be nugatory and inef- 
 41. The f ec t ua j . they are both derived from the same principle. It 
 authority " * s absurd, and contrary to the first foundations of society, 
 over the mi- that any citizens should claim an independence of the sove- 
 nisters of reign authority, in offices of such importance to the repose, 
 religion. ^ b. a ppi nes s, and safety of the state. This is establishing 
 two independent powers in tlje 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 : ecclesias- 
 tics, magistrates, and commanders of the troops, are all 
 [ 64 ] officers of the republic, each in his own department ; and all 
 
 are equally accountable to the sovereign. 
 
 g 142. Na- A prince cannot, indeed, justly oblige an ecclesiastic to 
 autIrit thlS P reac ^ a doctrine, or to perform a religious rite, which the 
 n y ' 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 neces- 
 sary 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 in- 
 dignation, at seeing a bishop audaciously resist the orders of 
 the sovereign, and the decrees of the supreme tribunals, so- 
 lemnly declaring that he thinks himself accountable to God 
 alone for the power with which he is intrusted ? 
 
 j? 143. Rule On the other hand, if the clergy are rendered contempti- 
 to be ob- ki e? it w iu foe out O f their power to produce the fruits for 
 relict to* whicn their ministr y was appointed. The rule that should 
 ecclesiastics. e 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 inde- 
 pendence. 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 respecta- 
 
 136
 
 OF PIETY AND RELIGION. 64 
 
 ble, he should take care that this respect be not carried to c JJJ K ^j 
 such a superstitious veneration as shall arm the hand of an CH ' 
 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 formida- 
 ble. 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. 
 
 If the sovereign be deprived of this power in matters of f if*. Re- 
 religion, and this authority over the clergy, how shall he pre- ca P 1 * ulatlon 
 serve the religion pure from the admixture of any thing con- ons ^[^ 
 trary to the welfare of the state ? How can he cause it to be establish the 
 constantly taught and practised in the manner most conducive sovereign's 
 to the public Avelfare ? and, especially, how can he prevent ngh *f m 
 the disorders it may occasion, either by its doctrines, or the ^iigion. 
 manner in which its discipline is exerted ? These cares and j" 65 1 
 duties can only belong to the sovereign, and nothing can dis- 
 pense with his discharging them. 
 
 Hence we see that the prerogatives of the crown, in eccle- Authorities 
 siastical affairs, have been constantly and faithfully defended and exam- 
 by the parliaments of France. The wise and learned magis- ples ' 
 trates, 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 con- 
 stitutes 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 func- 
 tions of heads of the church ; they made laws on subjects 
 relating to it,* summoned councils, and presided in them, 
 appointed and deposed bishops, &c. In Switzerland there 
 are wise republics, whose sovereigns, knowing the full extent 
 of the supreme authority, have rendered the ministers of 
 
 * See the Theodosian Code, 
 18 M 2 137
 
 65 OF PIETY AND RELIGION. 
 
 BOOK i. religion subject to it, without offering violence to their con- 
 CHAP. xir. sc i ences> 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 coun- 
 tries under their jurisdiction, in order that those who will 
 not conform to these establishments may not devote them- 
 selves to the service of the church. They keep all the min- 
 isters 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. 
 
 g us. Per- If Constantino and his successors had caused themselves 
 nicious con- to be formally acknowledged heads of the church, and if 
 
 sequences Christian kings and princes had, in this instance, known how 
 of the con- .. . , * /. . , , -, -, 
 
 trary opi- * maintain the rights of sovereignty, would the world ever 
 nion. have witnessed those horrid disorders produced by the pride 
 
 and ambition of some popes and ecclesiastics, emboldened by 
 [ 66 ] 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 them- 
 selves 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 I 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 danger- 
 ous system, would a foreigner, Pope Sextus V., have under- 
 taken 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,* 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 arro- 
 gated to himself the power of pronouncing on the legitimacy 
 pf the issue of a king ? Would kings have been assassinated 
 in consequence of a detestable doctrine ?f Would a part of 
 France have been afraid to acknowledge the best of their 
 kings,| until he had received absolution from Rome ? And, 
 would many other princes have been unable to give a solid 
 
 * In England under Henry VIII. \ Though Henry IV. returned to the 
 
 j" Henry III. and Henry IV. assas- Romish religion, a great number of 
 
 sinated by fanatics, who thought they Catholics did not dare to acknowledge 
 
 were serving God and the church by him until ho had received the pope's 
 
 stabbing their king. absolution. 
 138
 
 OF PIETY AND KELIGION. 66 
 
 peace to their people, because no decision could be formed BOOK r. 
 within their own dominions on articles or conditions in which _ CHAP - *", 
 religion was interested ?* 
 
 All we have advanced on this subject, so evidently flows 146. The 
 from the notions of independence and sovereignty, that it will abuses par- 
 never be disputed by any honest man who endeavours to re a- * lc ^;f' rized - 
 son justly. If a state cannot finally determine every thing e j of t h w " 
 relating to religion, the nation is not free, and the prince is popes, 
 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 subes'f [ 67 ] 
 "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 law| his famous bull Unam sanctam, in which he at- 
 tributes 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. 
 
 We shall consider the enormous power of the popes as the 
 first abuse that sprung from this system, which divests sove- 
 reigns of their authority in matters of religion. This power 
 in a foreign court directly militates against the independence 
 
 * Many kings of France in the civil posed him. In short, here are the ex- 
 wars on account of religion. pressions he made use of in addressing 
 
 f Tun-ctin. Hist. Ecclesiast. Compen- the council assembled at Home on the 
 
 dium, p. 1S2. Where may also be occasion: "Agite nunc, quseso, patres 
 
 seen the resolute answer of the king et principes sanctissimi, ut omnis mun- 
 
 of France. dus intelligat et cognoscat, quia si po- 
 
 J Extravag. Commun. lib. i. tit. De testis in ccelo ligare et solvere, potestis 
 
 Majoritate & Oledientia. in terra imperia, regna, principatus, 
 
 g Gregory VII. endeavoured to ren- ducatus, marchias, comitatus, et omni- 
 
 der almost all the states of Europe um hominum possessiones, pro meritis 
 
 tributary to him. He maintained that tollere unicuique et concedere." NA- 
 
 Hungary, Dalmatia, Russia, Spain, TAL, ALEX. Dissert. Hist. Eccl. s. xi. and 
 
 and Corsica, were absolutely his pro- xii. p. 384. 
 
 perty, as successor to St. Peter, or were The canon law boldly decides that 
 
 feudatory dependencies of the holy see. the regal power is subordinate to the 
 
 GREG. Epist. Condi, vol. vi. Edit, priesthood. "Imperium non prseest 
 
 Harduin. He summoned the emperor sacerdotio, sed subest, et ei obedire te- 
 
 Henry IV. to appear before him, and netur." RTJBBJC. ch. ri. De Major, et 
 
 make his defence against the accusa- Obed. " Et est multum allegabile," is 
 
 tions of some of his subjects : and, on the complaisant remark of the write- 
 
 the emperor's non-compliance, he de- of the article. 
 
 139
 
 CHAP. XII. 
 
 67 OF PIETY AND RELIGION. 
 
 O f 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 ex- 
 pense, 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.* 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 inter- 
 dict against Venice, on account of some very wise laws made 
 with respect to the government of the city, but which dis- 
 pleased that pontiff, who thus threw the republic into an em- 
 barrassment, from which all the wisdom and firmness of the 
 68 ] senate found it difficult to extricate it. Pius V., in his bull, 
 In Ccena 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 au- 
 thority of sovereigns ? 
 
 In those unhappy times, those dark ages that preceded 
 the revival of literature and the Reformation, the popes at- 
 tempted to regulate the actions of princes, under the pretence 
 of conscience to judge of 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 sove- 
 
 * History of the Revolutiont in Sweden. 
 140
 
 OP PIETY AND RELIGION. O 
 
 reigns.* We shall mention several other similar attempts, BOOK i. 
 when we come to treat of the faith of treaties. CHAP " * n ' 
 
 This power in the popes has given birth to another abuse, 147. 
 that deserves the utmost attention from a wise government. 2 - 
 We see several countries in which ecclesiastical dignities, and mencoJ-~ 
 all the higher benefices, are distributed by a foreign power ferredbya 
 by the pope who bestows them on his creatures, and very foreign 
 often on men who are not subjects of the state. This practice P wer - 
 is at once a violation of the nation's rights, and of the prin- 
 ciples of common policy. A nation ought not to suffer fo- 
 reigners 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. 
 
 Even in those states whose sovereigns have preserved so 148. 
 important a prerogative of the crown, the abuse in a great 3 - P werful 
 measure subsists. The sovereign nominates, indeed, to bishop- * ^^J ^ 
 rics and great benefices ; but his authority is not sufficient to a foreign 
 enable the" persons nominated to enter on the exercise of their court, 
 functions ; they must also have bulls from Rome.f By this [ 69 ] 
 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 
 
 * Vogel'a Historical and Political had to encounter, when he wished to 
 
 Treatise on the Alliances between France confer the archbishopric of Sens on 
 
 and the Thirteen Cantotw, pp. 33 and Renauld de Baune, archbishop of Bour- 
 
 36. gea, who had saved France, by receiving 
 
 f- We may see, in the letters of Cardi- that great prince into the Roman Catho- 
 
 nal d'Ossat, what difficulties, what op- lie church, 
 position, what long delays, Henry IV. 
 
 141
 
 by OF PIETY AND RELIGION. 
 
 BOOK i. prudent sovereign receive men who preached such doctrines ? 
 CHAP. xii. rrh ere neec i e( j no m0 re to cause all the missionaries to be 
 
 driven from China. 
 
 149. it was f or the purpose of more firmly securing the attach- 
 
 bac T Qf the men * ^ churchmen that the celibacy of the clergy was in- 
 priests. vented. 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 inte- 
 rests are all centred 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 legiti- 
 Convents. mate 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 slug- 
 gards. What should we think of a husbandman who pro- 
 [ 70 ] tected useless hornets, to devour the honey of his bees ?* 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 :f but 
 superstition soon attacked such just and wise regulations ; 
 and the Christian emperors, persuaded by churchmen, thought 
 themselves obliged to abrogate them.J Several of the fa- 
 thers of the church have censured those laws against celi- 
 bacy doubtless, says a great man, with a laudable zeal for 
 the things of another life ; but with very little knoivledge of 
 the affairs of this. This great man lived in the church of 
 Rome : he did not dare to assert, in direct terms, that volun- 
 tary celibacy is to be condemned even with respect to con- 
 
 * This reflection has no relation to always laudable, and may become very 
 
 the religious houses in which literature useful to the state, 
 
 is cultivated. Establishments that af- f The Papia-Poppaean law. 
 
 ford to learned men a peaceful retreat, j In the Theodosian Code, 
 
 and that leisure and tranquillity re- \ The president de Montesquieu, in 
 
 quired in deep scientific research, are his Spirit of Laws. 
 142
 
 OF PIETY AND RELIGION. 70 
 
 science and the things of another life : but it is certainly a BOOK i. 
 conduct well becoming genuine piety, to conform ourselves to CHAP - *" 
 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 chil- 
 dren a good education: in so doing, he will discharge his 
 duty, and be undoubtedly in the road to salvation. 
 
 The enormous and dangerous pretensions of the clergy ? 150. 
 are also another consequence of this system, which places 5 - Enor ' 
 every thing relating to religion beyond the reach of the"^g C J f 
 civil power. In the first place, the ecclesiastics, under pre- the clergy, 
 tence of the holiness of their functions, have raised them- 
 selves above all the other citizens, even the principal magis- Pre ' emi ' 
 trates : and, contrary to the express injunctions of their ner 
 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 mo- 
 dest; and one of their writers has had the assurance to 
 assert, that a priest is as much above a Icing as a man is above 
 a beast.*- 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 [ 71 ] 
 Theodosius the First Ambrose has taught me the great dif- 
 ference there is between the empire and the priesthood ! 
 
 We have already observed that ecclesiastics ought to be 
 honoured: but modesty, and even humility, should charac- 
 terize 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. 
 
 Ecclesiastics have not stopped in so fair a path. Not con- 151. 6. In. 
 tented with rendering themselves independent with respect to dependence, 
 their functions, by the aid of the court of Rome, they have Immunitie8 - 
 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. f The 
 
 * Tantum sacerdos proestat regi, quan- f The congregation of Immunities 
 turn homo bestia:. Stanislaus Orichovius. has decided that the cognisance of 
 Vide Tribbcchor. Exerc. 1, ad Baron, causes against ecclesiastics, even for 
 Annal.Sect 2, et Thomas. Nut.ad.Lancell. the crime of high treason, exclusively 
 
 143
 
 OF PIETY AND RELIGION. 
 
 BOOK I. 
 CHAP. XII. 
 
 canon law declares expressly, It is indecent for laymen to 
 judge a churchman* 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 ."f There 
 are decrees of the popes that excommunicate whoever im- 
 prisons a bishop. According to the principles of the church 
 of Rome, a prince has not the power of punishing an eccle- 
 siastic 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.J History affords us a thousand 
 
 belongs to the spiritual court : " Cog- 
 nitio causae contra ecclesiasticos, etiam 
 pro delicto hrsic majestatis, feri debet 
 a judice ecclesiastico." RICCI Synops. 
 Decret. et Resol. S. Congreg. Immunit. 
 p. 105. A constitution of pope Ur- 
 ban 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 ex- 
 communication. 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 dread- 
 ful disorders that arose from this cause, 
 at length produced their own remedy 
 in France, where the clergy were at 
 length subjected to the temporal juris- 
 diction for all transgressions that are in- 
 jurious to society. See PAPON Arrets 
 Notables, book i. tit. v. act 34. 
 
 * Indecorum est laicos homines viros 
 ecclesiasticos judicare. Can. in nona 
 actione 22, xvi. q. 7. 
 
 f See the Statement of Facts on the 
 System of Independence of Bishops. 
 
 J In the year 1725, a parish priest, 
 of the canton of Lucerne, having re- 
 fused to appear before the supreme 
 council, was, for his contumacy, ba- 
 nished from the canton. Hereupon 
 his diocesan, the bishop of Constance, 
 had the assurance to write to the coun- 
 cil that they had infringed the ecclesi- 
 astical immunities that "it is unlaw- 
 
 ful 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 nun- 
 cio and the court of Rome. But the 
 council of Lucerne firmly supported the 
 rights of sovereignty, and, without en- 
 gaging 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 con- 
 test 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 repeat- 
 ed 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," Ac. The bishop 
 of Constance had proceeded so far as 
 to assert, in his letter to the canton, 
 dated December 18th, 1725, that
 
 OF PIETY AND RELIGION. 72 
 
 examples of bishops who remained unpunished, or were but BOOK i. 
 slightly chastised, for crimes for which nobles of the highest CHAP - xn - 
 rank forfeited their lives. John de Braganza, king of Portu- 
 gal, 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.* 
 
 For an entire body of men, numerous and powerful, to 
 stand beyond the reach of the public authority, and be de- 
 pendent 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 autho- 
 rity. 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. 
 
 The same immunity is claimed for the possessions of the 152. 
 church. The state might, no doubt, exempt those posses- 7 - immuni- 
 sions from every species of tax at a time when they were ty ^ e ^ 
 scarcely sufficient for the support of the ecclesiastics ; but, p ' 
 for that favour, these men ought to be indebted to the public 
 authority alone, which has always a right to revoke it, when- 
 ever 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 [ 73 ] 
 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 en- 
 titled 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 man- *- 
 kind 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 
 
 " churchmen, as soon as they have fore." Memorial on the Dispute between 
 received holy orders, ceased to be natu- the Pope and the Canton of Lucerne, 
 ral subjects, and are thus released from p. 65. 
 the bondage in which they lived be- * Revolutions of Portugal. 
 
 19 N 145
 
 73 OF PIETY AND RELIGION. 
 
 BOOK i. confession of the clergy themselves, is destined for the poor. 
 
 CHAP. xn. - c *' . ..... , J 
 
 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 ex- 
 penses 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.* 
 
 Not satisfied, however, with rendering themselves inde- 
 muniTation P en( ient, the ecclesiastics undertook to bring mankind under 
 of men in their dominion ; and indeed they had reason to despise the 
 office. 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 pre- 
 vailed in some protestant countries. Churchmen have pre- 
 sumed, 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, respect- 
 able 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 
 [ 74 ] 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.* 
 
 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 
 
 * See Letters on the Pretensions of the Clergy.
 
 OF PIETY AND RELIGION. 74 
 
 that nations should have suffered such odious procedures. BOOK i. 
 We have slightly touched on this subject in 145 and 146. CHAP " 
 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 unfor- 
 tunate 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 ex- 
 posed to the audacious enterprises of the same pope. Inno- 
 cent 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 cru- 
 sade against him, as he would have done against the Sara- 
 cens. The king of England at first appeared determined to 
 defend himself with vigour ; but soon losing courage, he suf- 
 fered 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.* 
 
 The popes were not the only persons guilty of such enor- 
 mities : 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 an- 
 tiquity, the emperors themselves had called councils, where 
 the popes and prelates rendered to them, as to their sove- 
 reigns, the respect and obedience that was their due."f The [ 75 ] 
 emperor, however, thinking it necessary to yield a little to 
 the superstition of the times, condescended to send ambassa- 
 dors 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 su- 
 perior 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 eccle- 
 siastical electors, and many bishops, had presumed to declare 
 
 * Matthew Paris. Turretin. Compend. -f- HEISS'S History of the Empire, book 
 Hist. Ecdea. Seoul, xiii. ii. chap. xvi. 
 
 147
 
 75 OF PIETY AND RELIGION. 
 
 BOOK i. king of the Romans but who obtained little more by that 
 CHAP, xir. e i ec tion, 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.* 
 
 155. By means of the same spiritual arms, the clergy drew 
 
 10. The every thing to themselves, usurped the authority of the tri- 
 bunals, and disturbed the course of justice. They claimed 
 a right to take cognisance of all causes on account of sin, of 
 themselves, which (says Innocent IH.f) every man of sense must know 
 and disturb- i na t the cognisance belongs to our ministry. In the year 
 13 ??' the P rela ! es of Fran ce 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^. 
 And accordingly, it was their aim to have to themselves the 
 decision of all disputes. They boldly opposed the civil au- 
 thority, 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 
 [ 76 ] 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 cen- 
 turies 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 sum- 
 
 * Sovereigns were sometimes found, should acknowledge him as king, or 
 who, without considering future con- perform towards him any of the duties 
 sequences, favoured the papal en- of a subject. He then offered Arragon 
 croachments when they were likely and Catalonia to the Count de Valois, 
 to prove advantageous to their own second son of Philip the Bold, on con- 
 interests. Thus, Louis VIII., king dition that he and his successors should 
 of France, wishing to invade the terri- acknowledge themselves vassals of the 
 tories of the Count of Toulouse, under holy see, take an oath of fealty to the 
 pretence of making war on the Albi- pope, and pay him a yearly tribute, 
 genses, requested of the pope, among The king of France assembled the 
 other things, " that he would issue a barons and prelates of his kingdom, to 
 bull declaring that the two Raymonds, deliberate on the pope's offer, and they 
 father and son, together with all their advised him to accept of it. " Strange 
 adherents, associates, and allies, had blindness of kings and their counsel- 
 been and were deprived of all their lors !" exclaims, with good reason, a 
 possessions." VELLY'S Hist, of France, modern historian ; " they did not per- 
 vol. iv. p. 33. Of a similar nature to ceive, that, by thus accepting king- 
 the preceding is the following remark- doms from the hands of the pope, they 
 able fact: Pope Martin IV. excom- strengthened and established his pre- 
 municated Peter, king of Arragon, tensions to the right of deposing thera- 
 declared that he had forfeited his king- selves." VELLY'S History of France, 
 dom, all his lands, and even the regal vol. vi. p. 190. 
 dignity, and pronounced his subjects f In cap. Novit. de Judicis. 
 absolved from their oath of allegiance. j See Leibnitii Codex, Juris Gent. 
 He even excommunicated all who Diplomat. Dipl. LXVII. g 9. 
 148
 
 OF PIETY AND RELIGION. 76 
 
 moned before spiritual courts, for money debts, since every BOOK i. 
 one ought to be contented with the ordinary modes of justice CHAP - xir -.. 
 that were observed in the country.* 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 lie with their 
 wives the first three nights after marriage.f 
 
 This burlesque invention leads us to remark another abuse, 156. 
 manifestly contrary to the rules of a wise policy, and to the V 1 * Mone y 
 duty a nation owes to herself; I mean the immense su 
 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 endeavour- 
 ing to gain too much, suffered irreparable losses. 
 
 Finally, that independent authority intrusted to ecclesi- g 157. 
 astics, who were often incapable of understanding the true !2. L 
 maxims of government, or too careless to take the trouble of and 
 studying them, and whose minds were wholly occupied by a ^ welfare 
 visionary fanaticism, by empty speculations, and notions of of states. 
 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 :"J 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 Chris- 
 tianity, soon became a prey to barbarians ; her subjects, by 
 defending her, incurred the penalty of a degrading excom- 
 munication. 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. 
 
 * Ibid. Alliance of Zurich with the upon ; they would have made no great 
 
 antons of Uri, Schweitz, and Under- profit of any other, 
 wald, dated May 1, 1351, 7. J De Jure Belli et Pacts, lib. ii. cap. 
 
 f See A Regulation of Parliament in xxiv. He quotes Basil ad Amphiloch. 
 
 re arret of March 19, 1409. Spirit of x. 13. Zonarca* in Niceph. Phoc. vol. 
 
 Laws. These (says Montesquieu) were iii. 
 the very best nights they could pitch 
 
 ii 2 149
 
 TT 
 
 OF JUSTICE AND POLITY. 
 
 BOOK I. 
 CHAP. XIH. 
 
 to make 
 
 justice 
 
 reign. 
 
 CHAP. XIII. 
 
 OF JUSTICE AND POLITY. 
 
 g 158. A na- NEXT to the care of religion, one of the principal duties 
 tion ought O f a na tion 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 ob- 
 taining justice with certainty. 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, re- 
 pose, 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. 
 
 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 can- 
 not 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 sen- 
 sation 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.* It would be dangerous to commit the interests 
 of the citizens to the mere discretion of those who are to dis- 
 
 159. To 
 establish 
 good laws. 
 
 * See a dissertation on this subject, in the Loiair Philosophique, p. 71. 
 150
 
 BOOK I. 
 CHAP. Xn 
 
 OF JUSTICE AND POLITY. 77 
 
 pense justice. The legislator should assist the understanding 
 of the judges, force their prejudices and inclinations, and sub- 
 due their will, by simple, fixed, and certain rules. These, 
 again, are the civil laws. [ 78 ] 
 
 The best laws are useless, if they be not observed. The ico. TO 
 nation ought then to take pains to support them, and to cause enforce 
 them to be respected and punctually executed : with this view * em * 
 she cannot adopt measures too just, too extensive, or too ef- 
 fectual ; for hence, in a great degree, depend her happiness, 
 glory, and tranquillity. 
 
 We have already observed ( 41) that the sovereign, who iei. 
 represents a nation and is invested with its authority, is also Functions 
 charged with its duties. An attention to make justice flourish J^f'^ 
 in the state must then be one of the principal functions of the n th^ P * 
 prince ; and nothing can be more worthy of the sovereign speck 
 majesty. The emperor Justinian thus begins his book of the 
 Institutes : Imperatoriam majcstatem non solum armis deco- 
 ratam, sed etiam legibus oportet esse armatam, ut utrumque 
 tcmpus, et bellorum et pads, recte possit gubernari. The de- 
 gree of power intrusted by the nation to the head of the state, 
 is then the rule of his duties and his functions in the admin- 
 istration 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 consid- 
 erable 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. 
 
 The executive power naturally belongs to the sovereign, g 162. How 
 to every conductor of a people : he is supposed to be in- he is to 
 vested with it, in its fullest extent, when the fundamental ?jjjf" e 
 laws do not restrict it. When the laws are established, it JUS 
 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. 
 
 The best and safest method of distributing justice is by 163. He 
 establishing judges, distinguished by their integrity and ou s h . tto 
 knowledge, to take cognisance of all the disputes that mayJJJ^J 11 " 
 arise between the citizens. It is impossible for the prince to and upright 
 take upon himself this painful task : he cannot spare sufficient judges. 
 time either for the thorough investigation of all causes, or 
 
 151
 
 78 OF JUSTICE AND POLITY. 
 
 BOOK i. even for the acquisition of the knowledge necessary to decide 
 CHAP, xm. t h em> 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 law- 
 [ 79 ] suit 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 The establishment of courts of justice is particularly ne- 
 ordinary cessary for the decision of all fiscal causes, that is to say, 
 T^id d a ^ *^ e Disputes ^at ma y ar i se between the subjects on the 
 termine " one hand, and, on the other, the persons who exert the pro- 
 causes re- fitable prerogatives of the prince. It would be very unbe- 
 lating to the coming, and highly improper for a prince, to take upon him 
 revenue. ^ gj ve j u ^g men t 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 judg- 
 ments 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 at- 
 tached to his person. In all well-regulated states, in coun- 
 tries 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. 
 
 1 165. The end of all trials at law is justly to determine the dis- 
 
 There ought putes that arise between the citizens. If, therefore, suits are 
 to be esta- prosecuted before an inferior judge, who examines all the cir- 
 
 blished su- r *. i . ,1 . 
 
 preme cumstances and proofs relating to them, it is very proper, 
 courts of that, for the greater safety, the party condemned should be 
 justice allowed to appeal to a superior tribunal, where the sentence 
 wherem O f tne f ormer judge may be examined, and reversed, if it ap- 
 Bhouid be P ear * he ill-founded. But it is necessary that this supreme 
 finally de- tribunal should have the authority of pronouncing a definitive 
 termined. 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 
 
 152
 
 OF JUSTICE AND POLITY. IV 
 
 and intrigue in the courts of kings. If this practice he autho- BOOK r. 
 rized by the laws of the state, the prince ought always to fear CHAP - xm - 
 that these complaints are only formed with a view of protract- 
 ing 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 ruin- 
 ous length of these proceedings authorizes us to say that it is [ 80 ] 
 more convenient and advantageous to the state, to establish a 
 sovereign tribunal, whose definitive decrees should not be sub- 
 ject 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. 
 
 When once this sovereign tribunal is established, the prince ? 166. The 
 cannot meddle with its decrees ; and, in general, he is abso- P rince 
 lutely obliged to preserve and maintain the forms of justice. "f se ^g ^ 
 Every attempt to violate them is an assumption of arbitrary f orms O f 
 power, to which it cannot be presumed that any nation could justice, 
 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 peo- 
 ple. 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. 
 
 Justice is administered in the name of the sovereign ; the g 167. The 
 prince relies on the judgment of the courts, and, with good prince 
 reason, looks upon their decisions as sound law and justice. ougbt to . 
 His part in this branch of the government is then to maintain authority of 
 the authority of the judges, and to cause their sentences to the judges, 
 be executed ; without which they would be vain and delusive ; 
 for justice would not be rendered to the citizens. 
 
 There is another kind of justice named attributive or distri-$U8. Of 
 butive, which in general consists in treating everyone accord- distributive 
 ing to his deserts. This virtue ought to regulate the distribu- J ^ lc d ' stri _ 
 tion of public employments, honours, and rewards in a state, bution of 
 It is, in the first place, a duty the nation owes to herself, to employ- 
 encourage good citizens, to excite every one to virtue by hon- ments and 
 ours and rewards, and to intrust with employments such per- rewards> 
 sons 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. Al- 
 though a sovereign has the power of distributing his favours 
 and employments to whomsoever he pleases, and nobody has a 
 20 153
 
 80 OF JUSTICE AND POLITY. 
 
 SOOK i. perfect right to any post or dignity, yet a man who by in- 
 CHAP. xin. j. enge a ppii ca tion 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 
 [ 81 ] 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 those 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 dis- 
 tributed by favour. 
 
 g 169. Pun- The punishment of trangressors commonly belongs to dis- 
 ishment of tributive justice, of which it is really a breach ; since good 
 ^ansgres- or( | er re q u } res 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 
 Foundation p r i nc ipi es . The right of punishing, which in a state of nature 
 of punish- Belongs to each individual, is founded on the right of personal 
 ing. safety. Every man has a right to preserve himself from in- 
 
 jury, 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 ex- 
 ample, 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 mem- 
 bers, the individuals all resign to it their private right of pun- 
 ishing. 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. 
 
 2 170. Crf- It would be dangerous to leave the punishment of transgres- 
 minai laws. sors entirely to the discretion of those who are invested with 
 
 154
 
 OF JUSTICE AND POLITY. 81 
 
 authority. The passions might interfere in a business which BOOK T - 
 
 ought to be regulated only by justice and wisdom. The pun '- 
 
 ishment 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 legisla- 
 tive 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. 
 
 We shall only make one observation, which is connected ? i?i. De- 
 with the subject in hand, and relates to the degree of punish- & r e of P un - 
 ment. From the foundation even of the right of punishing, 1S r m go' T 
 and from the lawful end of inflicting penalties, arises the ne- ^ * 
 cessity 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 re- 
 quires. To say that any punishment is just since the trans- 
 gressor 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 tran- 
 quillity and the safety of society, and the wickedness it sup- 
 poses 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 present- 
 ed 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 pro- 
 duce 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 depre- 
 ciates 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 
 
 155
 
 82 OF JUSTICE AND POLITY. 
 
 BOOK i. spare the blood of the citizens, we cannot fail to be struck 
 CHAP, xin. a j. see j n g w j t |j h^ little ceremony it is now-a-days shed in the 
 generality of states. Was then the Roman republic but ill 
 governed ? Does 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 
 punished with death, what further punishment is reserved to 
 check the hand of the murderer ? 
 
 172. EX- The execution of the laws belongs to the conductor of the 
 ecution of state : he is intrusted with the care of it, and is indispensably 
 the laws, 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 
 [ 83 ] reasons we have already alleged in treating of civil causes, and 
 which are of still greater weight in regard to those of a crimi- 
 nal 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 re- 
 ceived 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 cei-tain 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 plea- 
 sure of the court, was the tyrannical invention of some minis : 
 ters who abused the authority of their master. By this irregu- 
 lar and odious procedure, a famous minister always succeed- 
 ed in destroying his enemies. A good prince will never give 
 his consent to such a proceeding, if he has sufficient discern- 
 ment 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. 
 
 1 173. Right The very nature of government requires that the executor 
 n f J )ardon- 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 sovereignty. But, in his whole conduct, in 
 his severity as well as his mercy, the sovereign ought to have 
 
 156
 
 OF JUSTICE AND POLITY. 83 
 
 no other object in view than the greater advantage of soci- BOOK i. 
 ety. A wise prince knows how to reconcile justice with CHAP- "" 
 clemency the care of the public safety with that pity which 
 is due to the unfortunate. 
 
 The internal police consists in the attention of the prince 174. in- 
 and magistrates to preserve every thing in order. Wise re- *? rnal P- 
 gulations ought to prescribe whatever will best contribute to llce- 
 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. [ 84 ] 
 
 Laws and the authority of the magistrates having been sub- 2 i? 5 - Duel 
 stituted in the room of private war, the conductors of a nation or 81 " gle 
 ought not to suffer individuals to attempt to do themselves jus- ?^ 
 tice, 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 an- 
 cient 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. 
 
 But Avhy was not that prince made sensible that the most g 176. 
 severe punishments were incapable of curing the rage for du- Means of 
 elling ? They did not reach the source of the evil ; and since P uttm & * 
 a ridiculous prejudice had persuaded all the nobility and gen- f 
 tlemen 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 dis- 
 honoured 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 to morality. That 
 
 (54) As to the legal view of the of- Aid. 462 ; and Burn's J. 26 ed. tit- 
 fence of duelling in England, see 6 East " Duelling." 
 Rep. 260 ; 2 East Rep. 581 ; 2 Barn. & 
 
 157
 
 84 OF JUSTICE AND POLITY. 
 
 BOOK i. worldly honour, be it as false and chimerical as you please, is 
 CHAP, xm. j. Q fa m a su kstantial 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 esteem- 
 ed 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 usur- 
 per 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 fur- 
 nishing 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 at- 
 r 85 1 tacks 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 per- 
 sonal 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 ex- 
 ercise 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 in- 
 solent 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 advantage of engaging in duel (if un- 
 avoidable) 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 con- 
 sequences. 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 insult- 
 ed : the aggressor dares not recede : and a combat ensues, 
 
 158
 
 OF JUSTICE AND POLITY. 85 
 
 which would not have taken place, if the latter could have BOOK * 
 once imagined that there was nothing to prevent the other HAP ' XI "' 
 from chastising him for his presumption the offended per- 
 son being acquitted by the same law that condemns the ag- 
 gressor. 
 
 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 no- 
 bleman 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 [ 86 ] 
 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, pun- 
 ishments 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 conse- 
 quence, 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 ad- 
 versary. 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 de- 
 graded from the rank of nobility and the use of arms, and for 
 ever deprived of the right of wearing a sword, without the least 
 hope of pardon : this would be the most proper method to re- 
 strain men of spirit, provided that due care was taken to make 
 a distinction between different offenders, according to the de- 
 gree of the offence. As to persons below the rank of nobility, 
 and who do not belong to the army, their quarrels should be 
 
 159
 
 86 THIRD OBJECT OF A GOOD GOVERNMENT, DEFENCE. 
 
 BOOK i. i e ft to the cognisance of the ordinary courts, which in case of 
 CHAP. xiir. bioo^ghg^ should punish the offenders according to the com- 
 mon laws against violence and murder. It should be the same 
 with respect to any quarrel that might arise between a com- 
 moner and a man entitled to carry arms : it is the business of 
 the ordinary magistrate to preserve order and peace between 
 those two classes of men, who cannot have any points of hon- 
 our 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 extir- 
 pate 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 occa- 
 sions the spilling of so much blood. It would be worthy a 
 great monarch to make a trial of it : its success would immor- 
 talize his name : and by the bare attempt he would merit the 
 love and gratitude of his people. 
 
 [ 8T ] CHAP. XIV. 
 
 CHAP. XIY. THE THIRD OBJECT OF A GOOD GOVERNMENT, TO FORTIFY 
 ITSELF AGAINST EXTERNAL ATTACKS. 
 
 ? 177. A na- WE have treated at large of what relates to the felicity of 
 tion ought a na tion : the subject is equally copious and complicated. 
 -^ e ^ us now proceed to a third division of the duties which a 
 
 external at- naton owes to itself, a third object of good government. One 
 tacks. of the ends of political society is to defend itself with its com- 
 bined 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 important duty, which the care of 
 its own perfection, and even of its preservation, imposes both 
 on the state and its conductor. 
 
 178. Na- It is its strength alone that can enable a nation to repulse 
 
 tionai all aggressors, to secure its rights, and render itself every- 
 
 strength. wnere 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 the citizens, their military virtues, and 
 
 160
 
 THIRD OBJECT OF A GOOD GOVERNMENT, DEFENCE. 87 
 
 AP. XIV. 
 
 their riches. Under this last article we may comprehend fort- _BOOK 
 resses, artillery, arms, horses, ammunition, and, in general,-" 
 all that immense apparatus at present necessary in war, since 
 they can all be procured with money. 
 
 To increase the number of the citizens as far as it is pos- ? 179 - In - 
 sible or convenient, is then one of the first objects that claim c ase . f 
 the attentive care of the state or its conductor : and this will be F^" a 
 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 [ 88 ] 
 subjects for the state has a right to expect more favour from 
 it than the man who chooses to live for himself alone.* 
 
 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, in- 
 stead of opposing them, as it was their duty to do, should have 
 protected and enriched them. ' A system of policy, that dex- 
 trously 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 grad- 
 
 (55) This subject, and the necessity and in favour of celibacy. "Videtur 
 
 for endeavouring to discourage the in- esse matrimonii et stupri differentia, 
 
 crease of population, have, in recent (says Tertullian) : sed utrobique est 
 
 years, occasioned the publication of communicatio.f Ergo, inquis, et primas 
 
 numerous works. See them commented nuptios damnas? Nee immerito, quo- 
 
 upon. 1 Chitty's Commercial Law, 1, 2, niam et ipsse constant ex eo quod est 
 
 Ac. stuprum." EXHORT. CASTIT. And thus 
 
 * It is impossible to suppress the Jerome : " Hanc tantum esso differenti- 
 
 emotions of indignation that arise on am inter uxorem et scortum, quod 
 
 reading what some of the fathers of the tolerabilius sit uni esse prostitutam 
 
 church have written against marriage, quam pluribus." 
 
 f Contaminatio. EDIT. 
 21 o2 161
 
 88 THIRD OBJECT OF A GOOD GOVERNMENT, DEFENCE. 
 
 BOOK i. ually to reform so palpable an abuse ; by his orders, none of 
 CHAP. XIY. j^s 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 ex- 
 ample ; 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 footing, you will see the protest- 
 ant 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. 
 \ iso. Va- A cowardly and undisciplined multitude are incapable of re- 
 lour, pulsing a warlike enemy : the strength of the state consists 
 less in the number than the military virtues of its citizens. Va- 
 lour, that heroic virtue which makes us undauntedly encounter 
 [ 89 ] 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 repu- 
 tation 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. Na- 
 ture 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 con- 
 quests, if that kingdom were surrounded by nations less war- 
 like ! 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. But valour alone is not always successful in war : constant 
 
 Other mili- success can only be obtained by an assemblage of all the mi- 
 wry virtue?, jitary virtues. History shows us the importance of ability 
 
 162
 
 THIRD OBJECT OF A GOOD GOVERNMENT, DEFENCE. 89 
 
 in the commanders, of military discipline, frugality, bodily BOOK i. 
 strength, dexterity, and being inured to fatigue and labour. CHAP - XIV .:. 
 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 studied the art of war, they inured them- 
 selves to its toils, they accustomed themselves to the prac- 
 tice of all its manoeuvres, 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 
 less celebrated for their discipline than their bravery. Me- 
 zeray, 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 pre- 
 sent, the Swiss, in that battle, under every trial, against in- 
 fantry and cavalry, against French and against Germans, 
 gained the palm for military discipline, and acquired the re- 
 putation of being the best infantry in the world."* 
 
 Finally, the wealth of a nation constitutes a considerable g 182. 
 part of its power, especially in modern times, when war re- Riches, 
 quires such immense expenses. It is not simply in the re- 
 venues of the sovereign, or the public treasure, that the riches 
 of a nation consist : its opulence is also rated from the wealth [ 90 ] 
 of individuals. We commonly call a nation rich, when it 
 contains a great number of citizens in easy and affluent cir- 
 cumstances. The wealth of private persons really increases 
 the strength of the nation ; since they are capable of contri- 
 buting 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. 
 
 It is requisite that the state should possess an income pro- g 183. Pub- 
 portionate to its necessary expenditures. That income may lic revenues 
 be supplied by various means, by lands reserved for that and taxes> 
 
 * History of France, vol. ii. p. 888.
 
 OF THE GLORY OF A NATION. 
 
 BOOK i. purpose, by contributions, taxes of different kinds, &c. but 
 CHAP, xiv. o f ^ g su hj ec t we shall treat in another place. 
 184. The We have here summed up the principal ingredients that 
 nation ought constitute that strength which a nation ought to augment and 
 crease its i m P rove - Can it be necessary to add the observation, that 
 power by ii- this desirable object is not to be pursued by any other me- 
 legal means, thods than such as are just and innocent ? A laudable end 
 is not sufficient to sanctify the t means; for these ought to be 
 in their own nature lawful. The law of nature cannot con- 
 tradict itself: if it forbids an action as unjust or dishonest in 
 its own nature, it can never permit it for any purpose what- 
 ever. 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 him- 
 self by seizing his neighbour's property. 
 
 185. Pow- The power of a nation is relative, and ought to be measured 
 ens but re- ^y ^at Q f j tg 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 
 [ 91 ] 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 in- 
 stance, ought never to lose sight of the maxims of justice. 
 
 CHAP. XV. 
 
 OF THE GLORY OF A NATION. 
 
 186. Ad- THE glory of a nation is intimately connected with its 
 vantages of p 0wer? an( j indeed forms a considerable part of it. It is this 
 brilliant advantage that procures it the esteem of other na- 
 tions, 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 
 
 164
 
 OF THE GLORY OF A NATION. 91 
 
 those who wish to become so, favour its enterprises ; and BOOK ' 
 those who envy its prosperity are afraid to show their ill-will. CHAP - XY - 
 
 It is, then, of great advantage to a nation to establish its g isr. Duty 
 reputation and glory ; hence, this becomes one of the most of the na- 
 important of the duties it owes to itself. True glory consists tion> 
 in the favourable opinion of men of wisdom and discern- 
 ment ; 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 HOW true 
 to it ; first, by what it does in its national character, by the s lor y is ac- 
 conduct of those who have the administration of its affairs, <i uired - 
 and are invested with its authority and government; and, 
 secondly, by the merit of the individuals of whom the nation 
 is composed. 
 
 A prince, a sovereign of whatever kind, being bound to 188. Duty 
 exert every effort for the good of the nation, is doubtless ofthe 
 obliged to extend its glory as far as lies in his power. ~We prince ' 
 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 great- 
 ness of soul, and he will thus acquire for himself and his peo- 
 ple 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 [ 92 ] 
 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 can- 
 not 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 per- 
 son of the prince ; what, then, must become of it, if he pros- 
 titutes it, or suffers it to be prostituted by those who speak 
 and act in his name ? The minister who puts into his mas- 
 ter's mouth a language unworthy of him, deserves to be 
 turned out of office with every mark of ignominy. 
 
 The reputation of individuals is, by a common and natural 
 
 165
 
 92 OF THE GLORY OF A NATION. 
 
 BOOK i. mode of speaking and thinking, made to reflect on the whole 
 JAP. xv. na ti on> j n genial, we attribute a virtue or a vice to a peo- 
 
 2 189. Duty pj e ^ wnen that vice or that virtue is frequently observed among 
 zens. 6 C *~ 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 else- 
 where. 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 re- 
 putation, 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 Tu- 
 renne, 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 sup- 
 press and to punish scandalous enormities, which do a real 
 injury to the state. 
 
 g 190. Ex- The example of the Swiss is very capable of showing how 
 ample of advantageous glory may prove to a nation. (56) The high 
 the Swiss. re p u t a tion 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 XL, while dauphin, was 
 witness of the prodigies of valour they performed at the 
 [ 93 ] battle of St. Jacques, near Basle, and he immediately formed 
 the design of closely attaching to his interest so intrepid a 
 nation.* The twelve hundred gallant heroes, who on this 
 occasion attacked an army of between fifty and sixty thou- 
 sand veteran troops, first defeated the vanguard of the Ar- 
 magnacs, 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, f 
 But, besides their terrifying the enemy, and preserving 
 
 (56) This observation properly refers considered by their countrymen as 
 
 to ante, $ 124, p. 54. cowards that had preferred a life of 
 
 * See the Memoirs of Comines. shame to the honour of dying for their 
 
 ( Of this small army, " eleven hun- country." History of the Helvetic Con- 
 
 dred and fifty-eight were counted dead federacy, by M. de Watteville, vol. i. p. 
 
 on the field, and thirty -two wounded. 250. Tschudi, p. 425. 
 
 Twelve men only escaped, who were 
 166
 
 OF THE PROTECTION SOUGHT BY A NATION. 
 
 Switzerland from a ruinous invasion, they rendered her essen- BOOK i^ 
 tial service by the glory they acquired for her arms. A re- 
 putation for an inviolable fidelity is no less advantageous to 
 that nation ; and they have at all times been jealous of pre- 
 serving it. The canton of Zug punished with death that un- 
 worthy 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 march- 
 ing out of Novara.* 
 
 Since the glory of a nation is a real and substantial ad- 191- A t- 
 vantage, she has a right to defend it, as well as her other ad- JJJ?*,** 
 vantages. He who attacks her glory does her an injury ; and nation is do _ 
 she has a right to exact of him, even by force of arms, a just i ng he 
 reparation. We cannot, then, condemn those measures, some- injury. 
 times 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 at- 
 tribute them to a vain pride, we only betray the grossest igno- 
 rance of the art of reigning : and despise one of the firmest 
 supports of the greatness and safety of a state. 
 
 er an 
 
 CHAP. XVI. 
 
 CHAP. XVI. 
 
 OF THE PROTECTION SOUGHT BY A NATION, AND ITS VOLUN- 
 TARY SUBMISSION TO A FOREIGN POWER. 
 
 WHEN a nation is not capable of preserving herself from 192. Pro- 
 insult and oppression, she may procure the protection of a teotion. 
 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 [ 94 ] 
 reserving to herself the right of administering her own govern- 
 ment 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. 
 
 But this matter is sometimes carried still farther : and, al- 193 - v - 
 though a nation is under an obligation to preserve with the JjJPjJJJ b ~ 
 utmost care the liberty and independence it inherits from one na tion 
 nature, yet when it has not sufficient strength of itself, and to another, 
 feels itself unable to resist its enemies, it may lawfully sub- 
 ject itself to a more powerful nation on certain conditions 
 
 * Vogel's Historical and political France and the Thirteen Cantons, p. 
 Treatise of the Alliances between 75, 76. 
 
 167
 
 94 OF THE PROTECTION SOUGHT BY A NATION. 
 
 BOOK i. agreed to by both parties : and the compact or treaty of sub- 
 CHAP. xvi. m j s gi on w in thenceforward be the measure and rule of the 
 rights of each. For, since the people who enter into subjec- 
 tion resign a right which naturally belongs to them, and trans- 
 fer it to the other nation, they are perfectly at liberty to an- 
 nex 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. So- This submission may be varied to infinity, according to the 
 verai kinds ^i}j of the contracting parties : it may either leave the infe- 
 6ion UbmiS ~ r * or na ti n a P ai> t f the sovereignty, restraining it only in cer- 
 tain 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 sub- 
 mission, 1. The allies of the Roman people, such as the in- 
 habitants of Latium were for a long time, who, in several re- 
 spects, 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; * 
 
 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 In the case of a real subjection to a foreign power, the 
 
 of the citi- citizens who do not approve this change are not obliged to 
 
 the nitron submit to it : they ought to be allowed to sell their effects 
 
 submits to a and retire elsewhere. For, my having entered into a society 
 
 foreign pow- does not oblige me to follow its fate, when it dissolves itself 
 
 er - 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 
 
 [ 95 ] itself of that 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. When a nation has placed itself under the protection of 
 
 These com- another that is more powerful, or has even entered into sub- 
 pacts annul- j ec tion to it with a view to receiving its protection, if the 
 failure of 6 ^^ er does not effectually protect the other in case of need, 
 protection, 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, 
 
 * Itaque populum Campanum, ur- patres conscript!, populique Romani 
 
 bemque Capuam, agros, delubra deflm, ditionem dedimus. LIVY, book vii. 
 
 divina huinanaque omnia, in restrain, c. 31. 
 168
 
 OF THE PROTECTION SOUGHT BY A NATION. 
 
 95 
 
 re-enters into the possession of all its rights, and recovers its BOOK i. 
 independence, or its liberty. It is to be observed that this CHAP - XYI i 
 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 dis- 
 solved ; the weaker resumes its rights, and may, if it thinks 
 proper, have recourse to a more effectual protection.* 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 con- 
 cluded an alliance with the three first cantons ; and the dukes 
 having carried their complaint to the emperor, the inhabit- 
 ants 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, "f 
 
 The law is the same with respect to both the contracting 197. Or 
 parties : if the party protected do not fulfil their engage- b y. . tlie " lfi * 
 ments with fidelity, the protector is discharged from his ; ^f^^ e 
 may afterwards refuse his protection, and declare the treaty tectcd. 
 broken, in case the situation of his affairs renders such a step 
 advisable. 
 
 In virtue of the same principle which discharges one of the 198 - AnJ 
 contracting parties when the other fails in his engagements, by th f en ~ 
 if the more powerful nation should assume a greater autho- of the pro . 
 rity over the weaker one than the treaty of protection or sub- tector. 
 mission 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 conven- 
 tion 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 Avould, 
 to the weaker party, prove a downright deception. However, [ 96 ] 
 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 pre- 
 cautions 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 
 
 * We speak here of a nation that f See The History of Switzerland. 
 has rendered itself subject to another, The United Provinces, having been 
 and not of one that has incorporated obliged to rely wholly on their own 
 itself with another state, so as to con- efforts in defending themselves against 
 stitute a part of it. The latter stands Spain, would no longer acknowledge 
 in the same predicament with all th- any dependence on the empire from 
 other citizens. Of this case we shalJ which they had received no assistance, 
 treat in the following chapter. GROTIUS, Hist, of the Troubles in the Low 
 
 Countries, b. xvi. p. 627. 
 22 P 169
 
 96 HOW A NATION MAY SEPARATE ITSELF. 
 
 BOOK i. superior power shall arrogate to itself any rights not expressly 
 CHAP, xvi. grante d by the treaty. 
 
 199. How But if the nation that is protected, or that has placed 
 the right of itself in subjection on certain conditions, does not resist the 
 ^rotectecHs encroacnments f that power from which it has sought sup- 
 lost by Its^ P ort if ^ ma kes no opposition to them if it preserves a 
 silence. profound silence, when it might and ought to speak its pa- 
 tient acquiescence becomes in.Jength of time a tacit consent 
 that legitimates the rights of the usurper. There would be 
 no stability 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 con- 
 sent, 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. 
 
 CHAP. XVII. 
 
 CHAP, xvn. 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. Dif- WE have said that an independent nation, which, without 
 ference be- becoming a member of another state, has voluntarily rendered 
 tween the itself dependent on, or subject to it, in order to obtain pro- 
 and those^n t ect i n ? i s released from its engagements as soon as that pro- 
 the preced- tection fails, even though the failure happen through the 
 ing chapter, inability of the protector. But we are not to conclude that it 
 is precisely the same case with every nation that cannot ob- 
 tain 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 advan- 
 tages it procures, are bound uniformly to support it : they 
 have entered into mutual engagements to continue united 
 iro
 
 HOW A NATION MAY SEPARATE ITSELF. 97 
 
 with each other, and to have on all occasions but one common BOOK i. 
 cause. If those who are menaced or attacked might sepa- OHAP - xv "- 
 rate 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 sepa- 
 rate 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 poli- 
 tical society, that the subjects remain united to their prince 
 as far as in their power. (57) 
 
 When, therefore, a city or a province is threatened or actu- 201. Du- 
 y attacked, it must not, for the sake of escaping the danger, <y 
 separate itself from the state of which it is a member, or m 
 
 ally attacked, it must not, for the sake of escaping the danger, <y of tne 
 separate itself from the state of which it is a member, or m g! n ! )ers f 
 abandon its natural prince, even when the state or the prince su t ) j ect ' so f a 
 
 is unable to give it immediate and effectual assistance. Its prince, who 
 duty, its political engagements, oblige it to make the greatest are in dan- 
 efforts, in order to maintain itself in its present state. If it ger ' 
 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 sub- 
 mits to the enemy when it cannot expect safety from a vigor- 
 ous resistance ; it takes an oath of fidelity to him ; and its 
 sovereign lays the blame on fortune alone. 
 
 The state is obliged to defend and preserve all its mem- 202. Their 
 bers ( 17) ; and the prince owes the same assistance to his ri & ht when 
 subjects. If, therefore, the state or the prince refuses or neg- ^and^ned 
 lects to succour a body of people who are exposed to immi- 
 nent danger, the latter, being thus abandoned, become per- 
 fectly free to provide for their own safety and preservation 
 in whatever manner they find most convenient, without pay- 
 ing 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 
 
 (57) Nemo potest exure patriam. is absolutely conquered by a foreign 
 This is part of natural allegiance, which power, and the parent state has 
 no individual can shake off until the acknowledged the severance. Sea 
 part of the country where he resides 1 Chilly's Commercial Law, 129. 
 
 171
 
 97 ESTABLISHMENT OF A NATION 
 
 BOOK i. discourse concerning his hawks, at the time when the depu- 
 CHAP. xvn. ^ eg a pp eare( j before him, would scarcely condescend to hear 
 them. Thus abandoned, the people of Zug entered into the 
 [ 98 ] Helvetic confederacy.* 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. f 
 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 ac- 
 knowledged by the emperor and the whole Germanic body, 
 at the treaty of Westphalia. 
 
 CHAP XVIII. 
 
 CHAP. XYIII. OF THE ESTABLISHMENT OF A NATION IN A COUNTRY. 
 
 $ 203. Pos- HITHERTO we have considered the nation merely with 
 session of a re gpect to itself, without any regard to the country it pos- 
 sesses - -^ e * us now see ** 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 to 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 them- 
 selves 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 fer- 
 tile, 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 man- 
 kind is individually restricted to what each lawfully possesses. 
 
 * See Etterlin, Simler, and De Wat- f See the same historians, and Bul- 
 teville. linger, Stumpf, Tschudi, and Stettler. 
 
 172
 
 CHAP - xvn *- 
 
 IN A COUNTRY. 
 
 The country which a nation inhabits, whether that nation has BOOK 
 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. 
 
 This right comprehends two things : 1. The domain, by I 204. ita 
 virtue of which the nation alone may use the country for the ri s ht over 
 supply of its necessities, may dispose of it as it thinks pro- } ts e p ^gg* s s m 
 per, and derive from it every advantage it is capable of yield- s i on . 
 ing. 2. The empire, or the right of sovereign command, by [ 99 ] 
 which the nation directs and regulates at its pleasure every 
 thing that passes in the country. 
 
 When a nation takes possession of a country to which no 205. Ac- 
 prior owner can lay claim, it is considered as acquiring the quisition of 
 empire or sovereignty of it, at the same time with the domain. the sove ~ 
 
 ri XT. r-'r j j jiV i. reignty in 
 
 Jb or, since the nation is free and independent, it can have no a v ^ cant 
 intention, in settling in a country, to leave to others the right country. 
 of command, or any of those rights that constitute sove- 
 reignty. The whole space over which a nation extends its 
 government becomes the seat of its jurisdiction, and is called j 
 its territory. 
 
 If a number of free families, scattered over an independent g 200. Ano- 
 country, come to unite for the purpose of forming a nation or ther manner 
 state, they altogether acquire the sovereignty over the whole of ac q uirin g 
 country they inhabit : for they were previously in possession ^ e a e e ^ lre 
 of the domain a proportional share of it' belonging to each coun t r y. 
 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. 
 
 All mankind have an equal right to things that have not 207. How 
 yet fallen into the possession of any one ; and those things a nati . on a P- 
 belong to the person who first takes possession of them. J^JJjJJJ 6 * 
 When, therefore, a nation finds a country uninhabited, and ^rl coun- 
 without an owner, it may lawfully take possession of it : and, try. 
 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. 
 
 But it is questioned whether a nation can, by the bare act? 208. A 
 of taking possession, appropriate to itself countries which it question on 
 does not really occupy, and thus engross a much greater ex- this 8ub J ect 
 tent 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 re- 
 
 P2 173
 
 ESTABLISHMENT OF A NATION IN A COUNTRY. 
 
 BOOK i. pugnant to the views of nature, which, having destined tho 
 CHAP._XVIII. wno ] e ear th 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 sovereignty 
 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 ef- 
 fect, when navigators have met with desert countries in which 
 [ 100 ] 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.* 
 g 209. Who- There is another celebrated question, to which the disco- 
 tiier it bo verv O f the N ew World has principally given rise. It is asked 
 "ossess^ whether a nation may lawfully take possession of some part 
 part of a of a vast country, in which there are none but erratic nations 
 country in- whose scanty population is incapable of occupying the whole ? 
 have already observed ( 81), in establishing the obliga- 
 ^ Q cultivate the earth, that those nations cannot exclu- 
 
 habited on 
 by a few 
 wandering 
 tribes. 
 
 * Those decrees being of a very sin- pope excepts only what might be in the 
 gular nature, and hardly anywhere to be possession of some other Christian 
 found but in very scarce books, the prince before the year 1493; as if ho 
 reader will not be displeased with see- had a greater right to give what be- 
 ing here an extract of them. longed to nobody, and especially what 
 
 The bull of Alexander VI. by which was possessed by the American nations. 
 
 he gives to Ferdinand and Isabella, king Ho adds : "Ac quibuscunque personis 
 
 and queen of Castile and Arragon, the ctijuscunquc dignitatis, etiam imperialis 
 
 New World, discovered by Christopher et regalis, status, gradus, ordinis, vel 
 
 Columbus. conditionis, sub excommuuicationis latse 
 
 "Motu proprio" (says the pope), sententias poena, quam eo ipso, si 
 
 " non ad vestram, vel alterius pro vobis contra fecerint, incurrant, districtius 
 
 super hoc nobis oblato petitionis in- inhibeinus no ad insulas et terras firmas 
 
 stantiam, sod de nostra mera libcrali- inventas et inveniendas, dctectas et do- 
 
 tate, et ex certa scientia, ac de aposto- tegendas, versus occidentem et ineri- 
 
 licas potestatis plenitudine, omnes in- diem pro mercibus habendis, 
 
 sulas et terras firmas, inventas et inve- vel quavis alia de causa, accedere prae- 
 
 niendas, detectas et detegendas, versus sumant absque vestra ac haeredum ot 
 
 occidentem et meridiem," (drawing a successorum vestrorum prajditcorum 
 
 line from one pole to the other, at a licentia special!, &c. Datum Roma3 
 
 hundred leagues to the west of the apud S. Petrum anno 1493. IV. nonas 
 
 Azores,) "auctoritate omnipotentis Dei Mnji, Pontific. nostri anno prinio." 
 nobis in beato Petro concessa, ac 
 vicariatis Jesu Christ!, qua fungimur 
 
 in terris, cum omnibus illarum domi- 
 
 Leibnitii Codex Juris Gent. Diplomat. 
 
 203. 
 
 See ibid. (Diplom. 165), the bull by 
 niis, civitatibus, <fec., vobis, haeredibus- which pope Nicholas V. gave to Al- 
 que et successoribus vestris, Castellae phonso, king of Portugal, and to the 
 et Legionis regibus, in perpetuum tc- infant Henry, the sovereignty of Gui- 
 nore prsesentium donamus, concedimus, nea, and the power of subduing the 
 assignamus, vosque ot hseredes ac sue- barbarous nations of those countries, 
 cessores, praefatos, illorum dominos, cum forbidding any other to visit that conn- 
 plena libera et omni moda potestate, try without the permission of Portugal, 
 auctoritate et jurisdictiono, facimus, This act is dated Rome, on the 8th of 
 constituimus, et deputamus." The January, 1454. 
 174
 
 OF OUR NATIVE COUNTRY, ETC. 100 
 
 sively appropriate to themselves more land than they have BOOK i. 
 occasion for, or more than they are able to settle and culti- CHAP ' XY1U : 
 vate. Their unsettled habitation in those immense regions 
 connot 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 subsist- 
 ence : 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 inha- [ 101 ] 
 bitants. We do not, therefore, deviate from the views of na- 
 ture, in confining the Indians within narrower limits. How- 
 ever, we cannot help praising the moderation of the English 
 Puritans who first settled in New England; who, notwith- 
 standing their being furnished with a charter from their sove- 
 reign, purchased of the Indians the land of which they in- 
 tended to take possession.* This laudable example was fol- 
 lowed by William Penn, and the colony of Quakers that he 
 conducted to Pennsylvania. 
 
 When a nation takes possession of a distant country, and ? 210. Co- 
 settles a colony there, that country, though separated from lomes> 
 the principal establishment, or mother-country, naturally be- 
 comes 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. 
 
 CHAP. XIX. 
 
 OF OUR NATIVE COUNTRY, AND SEVERAL THINGS THAT CHAP, six. 
 RELATE TO IT. 
 
 THE whole of the countries possessed by a nation and sub- 211. What 
 ject to its laws, forms, as we have already said, its territory, is our coun- 
 and is the common country of all the individuals of the na- tT ?- 
 tion. 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 al- 
 ready 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. 
 
 * History of the English Colonies in North America.
 
 101 OF OUR NATIVE COUNTRY, ETC. 
 
 BOOK i. The citizens are the members of the civil society ; bound 
 CHAP, xix- to this society by certain duties, and subject to its authority, 
 212. cm- they equally participate in its advantages. The natives, or 
 natural-born citizens, are those born in the country, of pa- 
 rents who are citizens. As the society cannot exist and per- 
 petuate 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 preser- 
 vation ; 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 fa- 
 thers 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 be is born there of a foreigner, it will be 
 [ 102 ] only the place of his birth, and not his country. 
 ? 213. in- The inhabitants, as distinguished from citizens, are fo- 
 habitants. reigners, 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 par- 
 ticipating 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. 
 
 g 214. Na- A nation, or the sovereign who represents it, may grant to 
 
 turaiization. a foreigner the quality of citizen, by admitting him into the 
 
 ( 58 ) 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 
 
 (58) See fully in general, and of 39, 43, 45 ; and see Reeves, 2d ed. 328, 
 naturalization in Great Britain in par- 330, and 37 Geo. 3, c. 97. C. 
 ticular, 1 Chitty's Commercial Law, {A native citizen of the United States 
 123 to 131 ; 1 Bla. Com. 369 ; Bac. Ab. cannot throw off his allegiance to the 
 Aliens. A naturalization in a foreign government, without an Act of Con- 
 country, without license, will not dis- gress authorizing him to do so. Miller 
 charge a natural-born subject from his v. The Resolution, 2 Dall. 10; Shanks v. 
 allegiance, 2 Chalmer's Col. Opin. 363. Dupont, 3 Pet S. C. Rep. 246 ; Coxe v. 
 But a natural-born subject of England, Mcllvaine, 4 Cranch, 209 ; The Santis- 
 naturalized in America, was holden to sitna Trinidada, 7 Wheat. Rep. 283 ; 
 be entitled to trade as an American The United States v. Gillies, Peter's C. 
 subject to the East Indies, 8 Term Rep. C. Rep. 159.} 
 176
 
 OF OUR NATIVE COUNTRY, ETC. 102 
 
 holding public offices and where, consequently, he has the BOOK i. 
 power of granting only an imperfect naturalization. It is CHAP - XIX - 
 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. 
 
 It is asked whether the children born of citizens in a 215. Chit- 
 foreign country are citizens? The laws have decided this dren of cit i- 
 question in several countries, and their regulations must be ^foreign 1 "' 
 followed.(59) By the law of nature alone, children follow country, 
 the condition of their fathers, and enter into all their rights 
 ( 212) ; the place of birth produces no change in this parti- 
 cular, 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. 
 
 As to children born at sea, if they are born in those parts 216. Chil- 
 of it that are possessed by their nation, they are born in the dren born at 
 country : if it is on the open sea, there is no reason to make sea * 
 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 terri- 
 tory. 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 else- 
 where. [ 103 ] 
 
 For the same reasons also, children born out of the coun-2ir. Chil 
 try, in the armies of the state, or in the house of its minister at d* en born i* 
 a foreign court, are reputed born in the country ; for a citi- the armies 
 
 of the state 
 
 (59) See 1 Chitty's Commercial Law, 114, n. 1 ; 115, n. 1. 
 23
 
 103 OF OUR NATIVE COUNTRY, ETC. 
 
 HOOK i. zen who is absent with his family, on the service of the state, 
 
 CHAP, xix. b u t still dependent on it, and subject to its jurisdiction, can- 
 
 or in the not be considered as having quitted its territory. 
 
 house of its Settlement is a fixed residence in any place, with an inten- 
 
 Tforef r at t * on of a ^ wa J s staying there. A man does not, then, esta- 
 
 court! lgn blish his settlement in any place, unless he makes sufficiently 
 
 218. Set- known his intention of fixing there, either tacitly or by an 
 
 tlement. 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 ac- 
 quire 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 (adsciti- 
 tium] is that where we settle by our own choice. 
 
 219. Va- Vagrants are people who have no settlement. Conse- 
 grants. quently, 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 mem- 
 ber of it, at least as a perpetual inhabitant, if not with all the 
 privileges of a citizen. We may, however, consider the coun- 
 try 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. Whe- Many distinctions will be necessary, in order to give a com- 
 ther a per- pl e te solution to the celebrated question, whether a man may 
 quit his country or the society of which he is a member. (60) 
 country. ! 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. 
 [ 104 ] 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 des- 
 tined 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 com* 
 
 (60) In Great Britain, the established 1 Bla. C. 369, 3 Chit. Com. Law, 129 
 maxim is nemo potest exuere pat)~ium, to 132. 
 178
 
 OF OUR NATIVE COUNTRY, ETC. 104 
 
 pensation for what it has done in his favour,* and preserv- BOOK i. 
 ing, as far as his new engagements will allow him, the senti- CHAP, xnc. 
 ments of love and gratitude he owes it. A man's obligations 
 to his natural country may, however, change, lessen, or en- 
 tirely 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 man- 
 hood, and acts as a citizen, he tacitly assumes that character ; 
 his obligations, like those of others who expressly and for- 
 mally enter into engagements with society, become stronger 
 and more extensive : but the case is very different with re- 
 spect to him of whom we have been speaking. When a so- 
 ciety has not been formed for a determinate time, it is allow- 
 able to quit it, when that separation can take place without 
 detriment to the society. A citizen m< r y 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 in- 
 ternal 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 with- 
 out necessity, or without very strong reasons. It is taking 
 a dishonourable advantage of our liberty, to quit our asso- 
 ciates 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 de- 
 fend themselves in a united body, and in concert ; they are 
 infamous deserters, whom the state has a right to punish 
 severely.f 
 
 * This is the foundation of the tax moted in the army of Saxony, had, with 
 
 paid on quitting a country, called, in the permission of his former sovereign, 
 
 Latin, census emigrations. sold the property he possessed in Li- 
 
 t Charles XII. condemned to death vonia. He had therefore quitted his 
 
 and executed General Patkul, a native own country, to choose another (as 
 
 of Livonia, whom he had made prisoner every free citizen is at liberty to do, 
 
 in an engagement with the Saxons, except, as we have observed above, at 
 
 But the sentence and execution were a critical moment, when the circum- 
 
 tt violation of the laws of justice. Pat- stances of his country require the aid 
 
 Kul, it is true, had been born a subject of all her sons), and the king of Sweden, 
 
 of the king of Sweden ; but he had by permitting him to sell his property, 
 
 quitted his native country at the age hud consented to his emigration, 
 of twelve years, and having been pro- 
 
 179
 
 105 OF OUR NATIVE COUNTRY, ETC. 
 
 BOOK i. In a time of peace and tranquillity, when the country has 
 CHAP, xi^ no ac t ua i nee( j O f a ii ner children, the very welfare of the 
 
 221. How s tate, and that of the citizens, requires that every individual 
 ma^absent ^ e at l^erty to travel on business, provided that he be always 
 himself for ready to return, whenever the public interest recalls him. It 
 a time. is not presumed that any man has bound himself to the so- 
 ciety 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. Vari- The political laws of nations vary greatly in this respect, 
 ation of the j n S0 me nations, it is at all times, except in case of actual 
 kwfhfthis war ' a ^ owe ^ to every citizen to absent himself, and even to 
 respect. (6i) q 11 ^ tne country altogether, whenever he thinks proper, with- 
 These must out alleging any reason for it. This liberty, contrary in its 
 be obeyed. own nature to the welfare and safety of society, can nowhere 
 be tolerated but in a country destitute of resources and inca- 
 pable 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 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 Avhatsoever 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 sove- 
 reign abuses his power, and reduces his subjects to an insup- 
 portable 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 There are cases in which a citizen has an absolute right 
 in which a to renounce his country, and abandon it entirely a right 
 ^ * f un d e( l 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 liim to seek it else- 
 where. 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. 
 
 (61) See post, Book II. ch. viii. 103, p. 731 to 733, as to writs of ne exeat 
 p. 174, and Chitty's General Practice, rec/no.
 
 OF OUR NATIVE COUNTRY, ETC. 10ft 
 
 2. If the body of the society, or he who represents it, ab- BOOK i. 
 solutely fail to discharge their obligations towards a citizen, CHAP - XIX - 
 the latter may withdraw himself. For, if one of the contract- 
 ing parties does not observe his engagements, the other is no 
 longer bound to fulfil his ; as the contract is reciprocal be- [ 106 ] 
 tween the society and its members. It is on the same prin- 
 ciple, also, that the 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 sub- 
 mission, 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 to take with them their 
 families and effects. For, they cannot be supposed to have 
 subjected themselves to the authority of men, in affairs of 
 conscience ;* 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 in- 
 stances 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). 
 
 Those who quit their country for any lawful reason, with 1 224. Emi- 
 a design to settle elsewhere, and take their families and pro- s rants - 
 perty with them, are called emigrants. 
 
 Their right to emigrate may arise from several sources. I 225. 
 1. In the cases we have just mentioned ( 223), it is a natural So rces of 
 right, which is certainly reserved to each individual in the their nsht ' 
 very compact itself by. which civil society was formed. 
 
 2. The liberty of emigration may, in certain cases, be se- 
 cured 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 the territories of that power. There are 
 such treaties between the German princes, particularly for 
 Ceases in which religion is concerned. In Switzerland like- 
 wise, a citizen of Bern who wishes to emigrate to Fribourg, 
 and there profess the religion of the place, and, reciprocally, 
 
 * See above, the chapter on Religion. 
 
 Q 181
 
 106 
 
 OF OUR NATIVE COUNTRY, ETC. 
 
 BOOK i. a citizen of Fribourg who, for a similar reason, is desirous of 
 CHAP. xix. rem0 vmg t 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 
 [ 107 ] custom had no other foundation than the slavery to which the 
 people were then reduced. A prince, a lord, ranked his sub- 
 jects 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. 
 
 I 226. If If the sovereign attempts to molest those who have a right 
 the sove- to emigrate, he does them an injury ; and the injured indi- 
 reign m- yiduals may lawfully implore the protection of the power who 
 
 fringes their . .-,,. ! . '., * m , , T-" j TITM 
 
 right, he in- 1S willing to receive them. Thus we have seen Frederic Wil- 
 jures'them. liam, king of Prussia, grant his protection to the emigrant 
 
 Protestants of Saltzburgh. 
 
 g 227. Sup- The name of supplicants is given to all fugitives who im- 
 piicants. plore 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. Ex- Finally, exile is another manner of leaving our country, 
 lie and ba- An ex ii e j s a man driven from the place of his settlement, or 
 ient constrained to quit it, but without a mark of infamy. Ba- 
 nishment is a similar expulsion, with a mark of infamy an- 
 nexed.* 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 
 
 * The common acceptation of these by some disgrace at court." The reason 
 
 two terms is not repugnant to our ap- is plain : such a condemnation from the 
 
 plication of them. The French aca- tribunal of justice entails infamy on 
 
 demy says, "Banishment is only ap- the emigrant; whereas a disgrace at 
 
 plied to condemnations in duo course court does not usually involve the same 
 
 of law. Exile is only an absence caused consequence. 
 182
 
 OF OUK NATIVE COUNTRY, ETC. 
 
 perpetual banishment, he is only banished from the lands of BOOA i. 
 that society, and it cannot hinder him from living wherever CHA1> - xlx - 
 else he pleases ; for, after having driven him out, it can no 
 longer claim any authority over him. The contrary, how- 
 ever, may take place by particular conventions between two 
 or more states. Thus, every member of the Helvetic con- 
 federacy may banish its own subjects 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 vo- 
 luntary, when a man quits his settlement to escape some 
 punishment, or to avoid some calamity and involuntary, [ 108 ] 
 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. 
 
 A man, by being exiled or banished, does not forfeit the 229. The 
 human character, nor consequently his right to dwell some- xll f * n< * 
 where on earth. He derives this right from nature, or rather n^have a 
 from its Author, who has destined the earth for the habitation r i g ht to live 
 of mankind ; and the introduction of property cannot have somewhere, 
 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. 
 
 But though this right is necessary and perfect in the gene- 230. Na- 
 ral view of it, we must not forget that it is but imperfect with ture of *h 
 respect to each particular country. For, on the other hand, nght ' 
 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 be- 
 longs 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. 
 
 However, as property could not be introduced to the pre- 231. Duty 
 judice of the right acquired by every human creature, of not f natjons 
 being absolutely deprived of such things as are necessary tnwar(1s 
 no nation can, Avithout 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 
 asvlum, this man has no longer any right to demand it be- 
 cause, in such a case, the country inhabited by the nation 
 
 183 
 
 towards 
 them.
 
 108 OF OUR NATIVE COUNTRY, ETC. 
 
 BOOK i. cannot, at the same time, serve for her own use, and that of 
 CHAP, xix. t kj s f ore jg neri 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 territo- 
 ries a company of fugitives or exiles. Thus, it ought even 
 absolutely to r' ject them, if they are infected with a conta- 
 gious disease. Thus, also, it has a right to send them else- 
 where, if it has just cause to fear that they will corrupt the 
 manners of the citizens, that they will create religious disturb- 
 ances, 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 
 [ 109 ] retreat to the unfortunate, for slight reasons, and on ground- 
 less 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. 
 
 e 232. A If an exiled or banished man has been driven from his 
 nation can- country for any crime, it does not belong to the nation in 
 he has taken refuge to punish him for that fault com- 
 - in a foreign country. For, nature does not give to 
 
 mitted out men or to nations any right to inflict punishment, except for 
 of its terri- their own defence and safety ( 169) ; whence it follows that 
 tories; we canno t punish any but those by whom we have been in- 
 jured. 
 
 I 233. ex- But this very reason shows, that, although the justice of 
 cept such each nation ought in general to be confined to the punishment 
 as affect the O f cr i mes committed in its own territories, we ought to except 
 safetyTf fr m this rule those villains, who, by the nature and habitual 
 mankind, frequency of their crimes, violate all public security, and de- 
 clare 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 com- 
 mon 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 punish- 
 men, 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, 
 
 184
 
 OF PUBLIC, COMMON, AND PRIVATE PROPERTY. 109 
 
 S a S< 
 lass t 
 mitted. (62) 
 
 this is a second reason for delivering up malefactors of BOOK i. 
 that class to the states where their crimes have been com- CHAP - XIX . 
 
 CHAP. XX. 
 
 OP PUBLIC, COMMON, AND PRIVATE PROPERTY. 
 
 LET us now see what is the nature of the different things 234. What 
 contained in the country possessed by a nation, and endeavour the Romans 
 to establish the general principles of the law by which they "^^J 
 are regulated. This subject is treated by civilians under the c " 
 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. 
 
 Every thing susceptible of property is considered as be- ? 235. Ag- 
 longing to the nation that possesses the country, and as form- s re g ate 
 ing the aggregate mass of its wealth. But the nation does we * lth of * 
 
 11 i i i mi nation, and 
 
 not possess all those things in the same manner. Those not j ts divisions, 
 divided between particular communities, or among the indi- [ HO ] 
 viduals 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 some body or community, termed joint 
 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 com- 
 mon property to those things that belong to it in common, in 
 
 (62) A distinction has usually been 9 Barn. & Cress. 446. {A foreign 
 taken between capital offences and mere government has no right, by the Law 
 misdemeanors, and for one state to al- of Nations, to demand of the govern- 
 low the taking and removing an offen- ment of the United States a surrender 
 der of the former class back into the of a citizen or subject of such foreign 
 country where the offence was com- government, who has committed a crime 
 mitted, in order to take his trial in the in his own country. Such a right can 
 latter, but not so in case of misdemean- only exist by treaty. Comm. v. Deacon, 
 ore. But sometimes, as upon a charge 10 Serg. & Raw. 125 ; Case of Dos Santos, 
 of perjury, a foreign country will allow 2 Brocken. Rep. 493. The Case of 
 the removal of an offender even in case Hobins, Bee's Rep. 266, was under the 
 of a misdemeanor. See Ex parte Scott, treaty with Great Britain.} 
 
 24 2 U 185
 
 110 OF PUBLIC, COMMON, ANP 
 
 BOOK i. such a manner that all the citizens may make use of them, 
 CHAP. xx. an( j Q th ose 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 pri- 
 vate property, res singulorem. 
 
 % 236. Two When a nation in a body takes possession of a country, 
 ways of ac- every thing that is not divided among its members remains 
 qumng 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 As soon as the nation commits the reins of government to 
 revenues of the hands of a prince, it is considered as committing to him, 
 the public a tne same time, the means of governing. Since, therefore, 
 naturally 'aT * ne mcome f the public property, of the domain. of the 
 the sove- state, is destined for the expenses of government, it is natu- 
 reign's dis- rally at the prince's disposal, and ought always to be consi- 
 posal. dered in this light, unless the nation has, in express terms, 
 excepted it in conferring the supreme authority, and has pro- 
 vided in some other manner for its disposal, and for the ne- 
 cessary 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 re- 
 venues. 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 The nation may invest the superior with the sole use of i :-i 
 nation may common possessions, and thus add them to the domain of thfe 
 grant him g t a te. It may even cede the property of them to him. But 
 
 the use and . J 
 
 property of * nis cession M the use or property requires an express act of 
 
 its common the proprietor, which is the nation. It is difficult to found it 
 
 possessions, on a tacit consent, because fear too often hinders the subjects 
 
 from protesting against the unjust encroachments of the 
 
 sovereign. 
 
 239. or The people may even allow the superior the domain of the 
 allow him things they possess in common, and reserve to themselves the 
 the domain, uge Q f tnem j n tne wno le or in part. Thus, the domain of a 
 t^ itself* 3 the river, for instance, may be ceded to the prince, while the people 
 use of them, reserve to themselves the use of it for navigation, fishing, the 
 [ 111 ] watering of cattle, &c. They may also allow the prince the 
 sole right of fishing, &c., in that river. In a word, the peo- 
 ple may cede to the superior whatever right they please over 
 the common possessions of the nation ; but all those particu- 
 lar rights rights do not naturally, and of themselves, flow from 
 the sovereignty. 
 
 2 240. If the income of the public property, or of the domain, is 
 
 Taxes. not sufficient for the public wants, the state supplies the de- 
 
 186
 
 PRIVATE PROPERTY. Ill 
 
 ficiency by taxes. These ought to be regulated in such a BOOK i. 
 manner, that all the citizens may pay their quota in proper- CHAP - x i 
 tion to their abilities, and the advantages they reap from the 
 society. All the members of civil society being equally 
 oblige'd to contribute, according to their abilities, to its ad- 
 vantage and safety, they cannot refuse to furnish the subsi- 
 dies necessary to its preservation, when they are demanded 
 by lawful authority. 
 
 Many nations have been unwilling to commit to the prince g 241. The 
 a trust of so delicate a nature, or to grant him a power that nation may 
 he may so easily abuse. In establishing a domain for the f ese ' e * 
 support of the sovereign and the ordinary expenses of the right of imm 
 state, they have reserved to themselves the right of providing, posing 
 by themselves or their representatives, for extraordinary them, 
 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. 
 
 In other states, where the sovereign possesses the full and g 242. Of 
 absolute authority, it is he alone that imposes taxes, regulates the sove- 
 the manner of raising them, and makes use of them as he reign y ho 
 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 re- 
 monstrances, if it sees any inconveniences attending the im- 
 position 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 setting some bounds to his extrava- 
 gance, or to the avidity of the ministers and persons con- 
 cerned in the revenue.* 
 
 (63) All money bills, imposing a tax, dis. But Peter, Count de Lara, vigor- 
 must originate in and be passed by the ously opposed the measure, " contrac- 
 House of Commons, and afterwards taque nobilium manu, ex conventu dis- 
 submitted to the lords and the king for cedit, armis tueri paratus partam armis 
 their sanction, before they can become et virtute a majoribus immunitatem, 
 law. neque passurum affirmans nobilitatis 
 
 (64) This was, of course, when Vattel opprimendae atque novis vectigalibus 
 wrote, and before the Revolution. vexandae ab eo aditu initium fieri ; Mau- 
 
 * Too great attention cannot be ros opprimere non esse tanti, ut gravi- 
 used in watching the imposition of ori servitute rempublieam implicari si- 
 taxes, which, once introduced, not only nant. Rex, periculo permotus, ab ea 
 continue, but are so easily multiplied. cogitatione desistit. Petrum nobiles, 
 Alphonso VIII. king of Castile, be- consilio communicato, quotannis convi- 
 sieging a city belonging to the Moors vio excipere decreverunt, ipsum et pos- 
 (Concham urbein in Celtiberis), and teros, navatse operee mercedem, rei 
 being in want of money, applied to the gestaj bons-e posteritati monumentum, 
 states of his kingdom for permission to documentumque ne quavis occasione 
 impose, on every free inhabitant, a jus libertatis imminui patiantur." MA- 
 capitation-tax of five golden marave- RIAXA. 
 
 187
 
 112 OF PUBLIC, COMMON, AND 
 
 BOOK i. The prince who is invested with the power of taxing his 
 CHAP. xx. p e0 pi e OU ght by no means to consider the money thus raised 
 
 g 243. Du- as his own property. He ought never to lose sight of the end 
 ties of the f or -which this power was granted him : the nation was willing 
 * ena ^ e n * 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 favour- 
 ites, 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' pro- 
 perty to gratify his irregular passions. Injustice, though 
 screened from punishment, is not the less shameful, 
 g 244. Emi- Every thing in the political society ought to tend to the 
 nent domain good of the community ; and, since even the persons, of the 
 thHove to c iti zens are subject to this rule, their property cannot be ex- 
 reignty. cepted. 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 cer- 
 tain 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 a case of necessity, he disposes in like manner of 
 the possessions of a community, or an individual, the aliena- 
 tion 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 
 [ 113 ] a just proportion. The same rules are applicable to this case 
 as to the loss of merchandise thrown overboard to save the 
 vessel. 
 
 a 245. GO- Besides the eminent domain, the sovereignty gives a right 
 vernment of of another nature over all public, common, and private pro-
 
 PRIVATE PROPERTY. 113 
 
 perty, that is, the empire, or the right of command in all BOOK r. 
 places of the country belonging to the nation. The supreme CHAP - xx : 
 power extends to every thing that passes in the state, wher- P ublic P r - 
 ever it is transacted; and, consequently, the sovereign com- perty> 
 mands in all public places, on rivers, on highways, in deserts, 
 &c. Every thing that happens there is subject to his au- 
 thority. 
 
 In virtue of the same authority, the sovereign may make 246. The 
 laws to regulate the manner in which common property is to superior 
 be used, as well the property of the nation at large, as that ^ ^ e 
 of distinct bodies or corporations. He cannot, indeed, take,.^^ 1 ^ 
 away their right from those who have a share in that property : the use of 
 but the care he ought to take of the public repose, and of the things pos- 
 common advantage of the citizens, gives him doubtless a right sessed m 
 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 pre- 
 vent, 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 ac- 
 complish 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. 
 
 A corporation, as well as every other proprietor, has a 247. Alien- 
 right to alienate and mortgage its property : but the present ation f the 
 members ought never to lose sight of the destination of that P r P ert y of 
 joint property, nor dispose of it otherwise than for the ad- tion rponi 
 vantage of the body, or in cases of necessity. If they alien- 
 ate it with any other view, they abuse their power, and trans- 
 gress 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 pro- 
 perty 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 * sufficient authority to 
 take from a corporation the power of alienating their pro- 
 
 189
 
 114 OF PUBLIC, COMMON, AND 
 
 BOOK i. perty without the consent of the sovereign, appears to me 
 CHAP, xx. j. Q k e VQ - ( j Q f oun( j a ti onj an d contrary to the notion of pro- 
 perty. A corporation, it is true, may have received pro- 
 perty, either from their predecessors or from any other per- 
 sons, 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 All the members of a corporation have an equal right to 
 j! co e t mon the use of its common property. But, respecting the manner 
 per y. ^ en j y' n g -^ ^ Q body of the corporation may make such 
 regulations as they think proper, provided that those regula- 
 tions be not inconsistent with that equality which ought to 
 be preserved in a communion of property. Thus, a corpo- 
 ration 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 distinc- 
 tion to his disadvantage, by assigning him a less share than 
 that of the others. 
 
 249. How All the members of a body having an equal right to its 
 each mem- common property, each individual ought so to manage in 
 ber is to en- ^ j n g advantage of it, as not in any wise to injure the com- 
 mon use. According to this rule, an individual is not per- 
 mitted 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 it, he ar- 
 rogates to himself a private right, derogatory to the common 
 right of the public. 
 
 g 250. night The right of anticipation (jus prseventionis) ought to be 
 of anticipa- faithfully observed in the use of common things which can- 
 not 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 him- 
 self: and he ought to wait till I have done. For, I make 
 use of my right in drawing that water, and nobody can dis- 
 turb 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. 
 
 j 251. The The same rule ought to be observed in regard to those 
 same right common things which are consumed in using them. They 
 
 190
 
 PRIVATE PROPERTY. 114 
 
 belong to the person who first takes possession of them with BOOK m. 
 the intention of applying them to his own use : and a second, cnA ?- x gi 
 who comes after, has no right to take them from him. I re- in another 
 pair to a common forest, and begin to fell a tree : you come case- 
 in afterwards, and would wish to have the same tree : you 
 cannot take it from me : for this would be arrogating to your- 
 self a right superior to mine, whereas our rights are equal. [ 115 ] 
 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. 
 
 The expenses necessary for the preservation or reparation 252. Pro 
 of the things that belong to the public, or to a community, serration 
 ought to be equally borne by all who have a share in them, a d re P airs 
 
 , , , i_ j f j_i_ f common 
 
 whether the necessary sums be drawn from the common possegs i ons> 
 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 pasengers should contribute to their support. 
 
 We shall see presently that the sovereign ought to provide | 253. Duty 
 for the preservation of the public property. He is no less and ri s h t f 
 obliged, as the conductor of the whole nation, to watch over *|\ e ^^" thia 
 the preservation of the property of a corporation. It is the respect? 
 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 corre- 
 spondent right which is necessary to discharge it, the sove- 
 reign 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. 
 
 We have but a few words to say with respect to private I 254. Pri- 
 property : every proprietor has a right to make what use he vate P r - 
 pleases of his own substance, and to dispose of it as he perfcy * 
 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 
 
 (65) In Great Britain no such right person, or defrauds a person who has 
 of interference exists, and a person may insured against fire. Co. Lit 254; Sa- 
 lay waste or even burn his own property, villc's case, For. 6, 3 Thomas Co. Lit. 
 unless he thereby endangers a third 243, n. (m). C. 
 
 191
 
 115 OF PUBLIC, COMMON, AND PRIVATE PROPERTY. 
 
 BOOK r. extend this right of inspection so far as to lay a restraint on 
 
 JTHAP. xx. k' s gubjectg j n 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 It must also be observed, that individuals are not so per- 
 sovereign f ec tly free in the economy or government of their affairs as 
 iuo reguia- no * * ^ e su ^j ec t to the laws and regulations of police made 
 tions of po- by the sovereign. For instahce, if vineyards are multiplied 
 lice. 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 import- 
 ance requires it, the sovereign or the magistrate may oblige 
 [ 116 ] 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 au- 
 thority 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 in- 
 cendere, comprimere, vexare. 
 
 $ 256. In- Every man may naturally choose the person to whom he 
 heritances. -would leave his property after his death, as long as his right 
 is not limited by some indispensable obligation as, for in- 
 stance, that of providing for the subsistence of his children. (67) 
 The children also have naturally a right to inherit their fa- 
 ther'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, how- 
 ever, paid to the essential laws of nature. Thus, by a rule 
 established in many places with a view to support noble fami- 
 lies, 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. 
 
 (66) In Great Britain no such inter- (67) In England a parent has an abso- 
 
 ference now takes place, though formerly lute right to devise or bequeath all his 
 
 it was exercised. See 1 Bla. Com. property to a stranger in exclusion of 
 
 287. C. his children. 
 
 192
 
 OF THE ALIENATION OF THE PUBLIC PROPERTY. 116 
 
 BOOK I. 
 CHAP. XXI. 
 
 CHAP. XXI. 
 
 OF THE ALIENATION OF THE PUBLIC PROPERTY, OR THE 
 DOMAIN, AND THAT OF A PART OF THE STATE. 
 
 THE nation, being the sole mistress of the property in her 257. The 
 possession, may dispose of it as she thinks proper, and may nation may 
 lawfully alienate or mortgage it. This right is a necessary "JjJ* 1 * jj" 
 consequence of the full and absolute domain : the exercise pe rty Pn 
 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 prin- 
 ciples that no safe contract can be entered into with any na- 
 tion ; a conclusion which attacks the foundation of all public 
 treaties. 
 
 But it is very just to say, that the nation ought carefully g 258. Du- 
 to preserve her public property to make a proper use of ties of a na- 
 it not to dispose of it without good reasons, nor to alienate tion in this 
 or mortgage it but for a manifest public advantage, or in case respeck< 
 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 [ 117 J 
 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 to its members. 
 
 The same duties lie on the prince, the director of the na- f 259. u- 
 tion : he ought to watch over the preservation and prudent tie . s * * he 
 management of the public property to stop and prevent pnnce< 
 all waste of it and not suffer it to be applied to improper 
 uses. 
 
 The prince, or the superior of the society, whatever he is, g 260. He 
 being naturally no more than the administrator, and not the cannot 
 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 
 
 25 R 193
 
 117 , OF THE ALIENATION OF 
 
 BOOK i. of a thing substantially. If the superior exceeds his powers 
 CHAP, xxi. w j t ]j respect to this property, the alienation he makes of it 
 will be invalid, and may at any time be revoked by his suc- 
 cessor, or by the nation. This is the law generally received 
 in France ; and it was upon this principle that the duke of 
 Sully* advised Henry IV. to resume the possession of all the 
 domains of the crown alienated by his predecessors. 
 261. The The nation, having the fre t e disposal of all the property 
 nation may belonging to her ( 257), may convey her right to the sove- 
 right uTit' rc ig n > an d 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 ren- 
 der the people happy by his government it is not to be pre- 
 sumed 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. 
 
 261. Rules The rules we have just established relate to alienations of 
 on this sub- p UD li c property in favour of individuals. The question assumes 
 TecMx* re ~ a different aspect when it relates to alienations made by one 
 treaties be- nation to another :f it requires other principles to decide it in 
 tween na- the different cases that may present themselves. Let us en- 
 tion and deavour 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 pro- 
 perty to another, the cession ought to be deemed valid and 
 
 f 118 "j irrevocable, as in fact it is, in virtue of the notion of pro- 
 perty. 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 
 
 * See his Memoirs. 
 
 t Quod domania regnorum inalien- contra alias gentes divino privilegio 
 
 abilia et semper revocabilia dicuntur, opus foret. Leibnitz, Prafat. ad Cod. 
 
 id respectu privatorum intelligitur ; nam Jur. Gent. Dip lumat. 
 194
 
 THE PUBLIC PROPERTY. 118 
 
 reserve, given him the right, of treating and contracting with BOOK i. 
 
 other states, it is considered as having invested him with all CHAP, xxi. 
 
 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. 
 
 The question becomes more distinct, when it relates, not to 263. Alien- 
 the alienation of some parts of the public property, but to ation of a 
 the dismembering of the nation or state itself the cession^ ofthe 
 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 mem- 
 bers 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 ex- 
 treme 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: uor 
 can she any longer lay claim to the town or province thus 
 alienated, since she has relinquished every right she could 
 have over it. 
 
 But the province or town thus abandoned and dismembered 264 - 
 from the state, is not obliged to receive the new master whom ^^^g m 
 the state attempts to set over it. Being separated from the bered p art y" 
 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 law- 
 fully resist him. Francis I. having engaged, by the treaty [ 119 ] 
 of Madrid, to cede the duchy of Burgundy to the emperor 
 Charles V., the states of that province declared, " that, hav- 
 ing 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 lib- 
 erty, rather than pass into a new state of subjection."* 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. 
 
 * Mezeray's History of France, vol. ii. p. 458.
 
 119 
 
 OF THE ALIENATION OF THE PUBLIC PKOPERTY. 
 
 265. 
 Whether 
 the prince 
 has power 
 to dismcm- 
 ber 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 ab- 
 solute authority, he is then the depositary of the rights of the 
 nation, and the organ by which it declares its will. The na- 
 tion 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 neces- 
 sity 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 Cognag after the 
 king's return, unanimously resolved, " that his authority did 
 not extend so far as to dismember the crown."* 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 con- 
 currence 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 dis- 
 honour, 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 en- 
 tered into with the crown of France. For greater security, 
 [ 120 ] 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. 
 
 * Mezeray's History of France, vol. ii. p. 458. 
 
 196
 
 OF RIVERS, STREAMS, AND LAKES. 120 
 
 BOOK I. 
 
 CHAP. xxn. 
 
 CHAP. XXII. 
 
 OF RIVERS, STREAMS, AND LAKES. 
 
 WHEN a nation takes possession of a country, with a view 266. A ri- 
 to settle there, it takes possession of every thing included in ver that se- 
 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 deduced 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 her- 
 self. Consequently, the nation that first established her do- 
 minion 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 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 cer- 
 tainty 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. (*) 
 
 (68) As regards private rights, there Doug. 411. {Palmer v. Hicks, 6 Johns, 
 is no legal presumption that the soil Rep. 133.} 
 
 of a navigable river belongs to the own- (1) { 5 Wheat Rep. 374, 379 j 3 Mass, 
 ers of the adjoining lands, ex utraque Rep. 147.} 
 parte, or otherwise. Bex v. Smith, 2 
 
 B2 197
 
 120 OP RIVERS, STREAMS, AND LAKES. 
 
 BOOK i. 4. A long and undisputed possession establishes the right 
 CHAP. xxn. Q nations, (69) otherwise there could be no peace, no stabi- 
 lity 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 
 [ 121 ] upon a river which forms her boundary, nobody can dis- 
 pute 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 me- 
 thod taken by most powers at present. 
 
 267. Of If a river leaves its bed, whether it be dried up or takes 
 the bed of a its course elsewhere, the bed belongs to the owner of the 
 f lv ! r . ^ hlch river ; for, the bed is a part of the river ; and he who had 
 
 is dried up. '.'- . . / i ,, -, 
 
 or takes an- appropriated to himself the whole, had necessarily appro- 
 other course, priated to himself all its parts. 
 
 The If a territory which terminates on a river has no other 
 
 right of ai- boundary than that river, it is one of those territories that 
 hmon.(70) j laye na t ura ] or indeterminate bounds (territoria arcifinia), 
 and it enjoys the right of alluvion ; that is to say, every gra- 
 dual 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 allu- 
 vion ; 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 be- 
 tween 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 
 
 (69) Aa to what ia a sufficiently long 178 ; 4 Dowl. A Ry. 790 ; 3 Barn. & 
 and undisturbed possession, by the law Cres. 91, S. C.; 5 Bing. 163, 169; 1 
 of France, Jersey, and England, in Thomas Co. Lit. 47, in note ; Scultes on 
 general, see Eenett v. Pipon, Knapp's Aquatic Rights ; Chitty's General Prac- 
 Rep. 67. tice, 199, 200. {2 Johns. Rep. 322; 3 
 
 (70) As to the rights of alluvion, or Mass. Rep. 325; 2 Hall's L. Journ. 307; 
 gudden derelict in general, see The King 5 Hall's L. Journ. 1, 113.} 
 
 v. Yarborough, 1 Dow Rep. New Series, 
 198
 
 OF RIVERS, STREAMS, AND LAKES. 121 
 
 boundary, when a settlement is made ; and wherever there is BOOK i. 
 a doubt, that is always to be presumed which is most natural CHAP - xxn - 
 and most probable. 
 
 As soon as it is determined that a river constitutes the g 269. Whe- 
 boundary line between two territories, whether it remains com- ther aiiu- 
 mon to the inhabitants on each side of its banks, or whether vion P r - 
 each shares half of it, or, finally, whether it belongs entirely c j^t"n 
 to one of them, their rights with respect to the river are in t ho rfght to 
 no wise changed by the alluvion. If, therefore, it happens, a river, 
 that, by a natural effect of the current, one of the two terri- 
 tories receives an increase, while the river gradually en- 
 croaches on the opposite bank, the river still remains the na- 
 tural 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 oppo- 
 site banks, that middle, though it changes its place, will con- 
 tinue 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, [ 122 ] 
 while she forms new land for the other. The case cannot be 
 otherwise determined, since they have taken the river alone 
 for their limits. 
 
 But if, instead of a gradual and progressive change of its g 270. 
 bed, the river, by an accident merely natural, turns entirely What is the 
 out of its course, and runs into one of the two neighbouring J^ e r 7^ n 
 states, the bed which it has abandoned becomes, thencefor- * h ^ " r ita 
 ward, their boundary, and remains the property of the for- bed. 
 mer 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 contigu- 
 ous lands on each side, if they are lands that have natural 
 boundaries, with the right of alluvion. That bed (notwith- 
 standing what we have said in 267) is no longer the pro- 
 perty of the public, because of the right of alluvion vested 
 in the owners of its banks, and because the public held pos- 
 session 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. 
 
 It is not allowable to raise any works on the bank of &%2n. 
 river, which have a tendency to turn its course, and to cast Works 
 
 199
 
 122 OF RIVERS, STREAMS, AND LAKES. 
 
 BOOK i. it upon the opposite bank : this would be promoting our own 
 CHAP, xxn. a( jvantage a ^ our neighbour's expense. Each can only secure 
 tending to himself, and hinder the current from undermining and carry- 
 current 6 1 S &Way ^ ^^ ^ 
 
 TviT^or in ^ n g enera ^ no person ought to build on a river, any more 
 general, ' than elsewhere, any work that is prejudicial to his neigh- 
 prejudicial hour's rights. If a river belongs to one nation, and another 
 to the rights h as an incontestible right to navigate it, the former cannot 
 (73)* efS 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, 
 g 273. Rules But, when two different rights to the same thing happen to 
 in relation clash with each other, it is not always easy to determine 
 to interfer- wn i cn ought to yield to the other : the point cannot be satis- 
 mg ng s. f ac j- or j}y 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 na- 
 [ 123 ] ture 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 erect- 
 ing 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 naviga- 
 tion, of which we have spoken. This right necessarily sup- 
 poses 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 
 
 (71) This principle of the law of in the current. Rex v. Paghnm, 8 Barn, 
 nations has been ably discussed as part <fc Cress. 355 ; Rex v. Trafford, 1 Barn, 
 of the municipal law of Scotland and & Adolph. 874; 2 Man. & Ryl. 468; 1 
 England in Menzies v. Jii-cadalbane, Moore & Scott, 401 ; 8 Bjng. 204, (in 
 3 Wils. & Shaw, 235; and see The error.) 
 
 King v. Lord Yarborough, 1 Dow. Rep., (73) See note 72. 
 
 New Series, 179; and Wright v. Hoie- (74) But this doctrine seems ques- 
 
 ard, 1 Sim. A Stu. 190 ; Rex v. Traf- tionable. See Wright v. Howard, 1 Sim. 
 
 ford, 1 Barn. & Adolph. 874, and Chit- A Stu. 190 ; and Mason v. Hill, 3 Barn, 
 
 ty's General Practice, 610. {4 Dall. & Adolph. 304; Chitty's General Prac. 
 
 Rep. 211 ; 13 Mass. 420, 507; 3 Har. & 191, 192. Even a right of irrigating at 
 
 McIIen. 441; 2 Conn. Rep. 584; Coxe's reasonable times may qualify the abso- 
 
 Eep. 460. } lute and general right to the use of the 
 
 (72) That is permitted as well as a water for working a mill, 
 bank or groove to prevent an alteration 
 
 200
 
 OF RIVERS, STREAMS, AND LAKES. 123 
 
 right, if it be absolute, is to be exerted in its full extent, and BOOK x - 
 the other only so far as it may be extended without prejudice CHAP - xxn> 
 to the former ; for, it could only be established on this foot- 
 ing, unless the possessor of the first right has expressly con- 
 sented 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 consist- 
 ent 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 mani- 
 fest 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, pro- 
 vided 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 compen- 
 sation to the person who has a right to fish there. 
 
 What we have said of rivers and streams, may be easily 274. 
 applied to lakes. Every lake, entirely included in a country, Lakes - 
 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 con- 
 siderable 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 mid- 
 dle, while there is no title, no constant and manifest custom, 
 to determine otherwise. 
 
 What has been said of the right of alluvion, in speaking of g 275. In- 
 rivers, is also to be understood as applying to lakes. When crease of a 
 a lake which bounds a state belongs entirely to it, every in- lake ' 
 crease in the extent of that lake falls under the same predi- 
 cament 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. 1 speak of insensible increase: this is the reverse of 
 alluvion ; the question here relates to the increase of a lake, as, [ 124 ] 
 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. 
 
 (75) See note 74, ante, p. 122.
 
 124 OF RIVERS, STREAMS, AND LAKES. 
 
 BOOK i. But, 2. If the lake insensibly undermines a part of the 
 CHAP, xxii. pp OS it e 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 over- 
 flowed 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 posses- 
 sions 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 scarce- 
 ly 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 other- 
 wise, 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, pene- 
 trating 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 princi- 
 ples 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 over- 
 flowed ; and a person who has, for instance, the right of fish- 
 ing in the lake, may exert his right in this new extent : if the 
 [ 125 ] 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 in- 
 undation, this new lake belongs to the public, because all 
 lakes belong to the public. 
 
 276. Land The same principles show, that if the lake insensibly forms 
 formed on an accession of land on its banks, either by retiring or in any 
 the banks O ther manner, this increase of land belongs to the country 
 ' which it joins, when that country has no other boundary than 
 
 202 '
 
 OP THE SEA. 
 
 125 
 
 It is the same thing as alluvion on the banks of 
 
 BOOK i. 
 
 CHAP. XXII. 
 
 the lake. 
 
 ,, . 
 
 the river. 
 
 But, if the lake happened to be suddenly dried up, either 277. Bed 
 totally or in a great part of it, the bed would remain in the of . a lake 
 possession of the sovereign of the lake ; the nature of the soil, 
 so easily known, sufficiently marking out the limits. 
 
 The empire or jurisdiction over lakes and rivers is subject ? 278. Ju- 
 to the same rules as the property of them, in all the cases di 1 ti n 
 which we have examined. Each state naturally possesses it r * 
 over the whole or the part of which it possesses the domain. 
 We have seen ( 245) that the nation, or its sovereign, com- 
 mands in all places in its possession. 
 
 CHAP. XXIII. 
 
 OF THE SEA. (76) 
 
 CHAP. xxin. 
 
 IN order to complete the exposition of the principles of the 279. Ttj 
 law of nations with respect to the things a nation may pos- sea > and its 
 sess, it remains to treat of the open sea. The use of the open use< 
 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 
 
 (76) As to the dominion of the main 
 seas, and right to limit the passage there- 
 on, 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 re- 
 spect 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 pro- 
 scription. In the latter case, a pre- 
 sumption is raised that the king has 
 either granted him an exclusive right 
 to it, or has permitted him to have pos- 
 session of it, and to employ his money 
 and labour upon it, so as to confer upon 
 him a title by occupation, the founda- 
 tion of most of the rights to property in 
 land. This is the law of England, and 
 also of Jersey, and some other islands 
 belonging to Great Britain. Senest v. 
 
 Pipon, Knapp's Rep. 67; Blundett v. 
 Cotterall, 5 Bar. & Aid. 268,- and The 
 King v. Lord Yarborotigh, 3 Bar. A 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 
 low-water mark, except by a grant from 
 the king, or by such long and undis- 
 turbed enjoyment of it (viz. at least for 
 twenty years continuously) as to give 
 him a title by prescription ; and that 
 the possession necessary to constitute a 
 title by prescription must be uninter- 
 rupted 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. 
 
 203
 
 125 OF THE SEA. 
 
 BOOK r. making of salt, and finally, for the establishment of places of 
 CHAP, xxni. re t rea t an d security for vessels. 
 
 g 280. Whe- The open sea is not of such a nature as to admit the holding 
 t'her the sea possession of it, since no settlement can be formed on it, so 
 can be pos- as J.Q nm( j er others from passing. But a nation powerful at 
 itTdomi" 1 sea mav f rD id others to fish in it and to navigate it ; declar- 
 nion appro- ing that she appropriates to herself the dominion over it, and 
 priated. 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. 
 
 g 281. No- It is manifest that the use of the open sea, which consists 
 body has a in navigation and fishing, is innocent and inexhaustible ; that 
 right to ap- j s to g ne k nav ior a tes or fishes in the open sea does no 
 
 propnate to . . r' , e , . , , tc 
 
 himself the in j ur j to any one, and the sea, in these two respects, is sum- 
 use of the cient for all mankind. Now, nature does not give to man a 
 open sea. right of appropriating to himself things that may be inno- 
 cently used, and that are inexhaustible, and sufiicient for all. 
 For, since those things, while common to all, are sufiicient to 
 supply the wants of each, whoever should, to the exclusion 
 of all other participants, attempt to render himself sole pro- 
 T 126 ] prietor 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 pro- 
 perty, 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 na- 
 ture 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 them- 
 selves the empire of the seas of Guinea and the East Indies;* 
 but the other maritime powers gave themselves little trouble 
 about such a pretension. 
 
 The right of navigating and fishing in the open sea being 
 
 * See Grotius's Mare Liberum, and Selden's Mare Clausum, lib. i. cap. xrii. 
 204
 
 OF THE SEA. 126 
 
 then a right common to all men, the nation that attempts to BOOK r. 
 exclude another from that advantage does her an injury, and CHAP- XX111 ' 
 
 furnishes her with sufficient grounds for commencing hostili- 282. The 
 ties, since nature authorizes a nation to repel an injury that nation that 
 is, to make use of force against whoever would deprive her J^JJJJ 8 to 
 
 of her rights. another, 
 
 Nay, more, a nation, which, without a legitimate claim, does it an 
 would arrogate to itself an exclusive right to the sea, and jtfjjy- 
 support its pretensions by force, does an injury to all nations ; jj ven ' doeg 
 it infringes their common right ; and they are justifiable in a n injury to 
 forming a general combination against it, in order to repress all nations, 
 such an attempt. Nations have the greatest interest in caus- 
 ing the law of nations, which is the basis of their tranquil- 
 lity, to be universally respected. If any one openly tram- 
 ples it under foot, 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). 
 
 However, as every one is at liberty to renounce his right, 284. it 
 a nation may acquire exclusive rights of navigation and fish- ma y acquiro 
 ing, by treaties, in which other nations renounce in its favour a . n B1 
 the rights they derive from nature. The latter are obliged " s 
 to observe their treaties ; and the nation they have favoured 
 has a right to maintain by force the possession of its advan- 
 tages. Thus, the house of Austria has renounced, in favour [ 127 ] 
 of England and Holland, the right of sending vessels from 
 the Netherlands to the East Indies. In G-rotius, de Jure 
 Belli et Pads, lib. ii. cap. iii. 15, may be found many 
 instances of similar treaties. 
 
 As the rights of navigation and of fishing, and other rights 285. but 
 which may be exercised on the sea, belong to the class of not ; b 7 ? re * 
 those rights of mere ability (jura merce facultatis), which ^^g 
 are imprescriptible ( 95), they cannot be lost for want of use. U se,(77) 
 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) 
 
 But it may happen that the non-usage of the right may 286. un- 
 assume the nature of a consent or tacit agreement, and thus less b ^ vir ; 
 become a title in favour of one nation against another. When ^ u * " 
 a nation that is in possession of the navigation and fishery 
 
 (77) See observations and authorities, tion not successfully litigated will pre- 
 1 Chit. Com, L. 287, n. 4, 5. vent a right, see the judgment in JBenest 
 
 (78) As to the effect of twenty years' v. Pipon, Knapp's Rep. 67. C. 
 uninterrupted use, and what interrup- 
 
 8 205
 
 127 OF THE SEA. 
 
 BOOK i. in certain tracts of sea claims an exclusive right to them, and 
 CHAP, xxm. forfodg a j} participation on the part of other nations, if the 
 others obey that prohibition with sufficient marks of acquies- 
 cence, they tacitly renounce their own right in favour of that 
 nation, and establish for her a new right, which she may after- 
 wards lawfully maintain against them, especially when it is 
 confirmed by long use. (79) 
 
 287. The The various uses of the sea, near the coasts render it very 
 sea near the susce ptible of property. It furnishes fish, shells, pearls, am- 
 becomeT 7 ^er, & c - ^ow, * n a11 ^ ese respects, its use is not inexhausti- 
 property. ble : 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 domi- 
 nion of the land they inhabit. Who can doubt that the pearl 
 fisheries of Bahrem and Ceylon may lawfully become pro- 
 perty ? And though, where the catching of fish is the only 
 object, the fishery appears less liable to be exhausted, yet, if 
 a nation have on their coast a particular fishery of a profita- 
 ble 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 
 [ 128 ] to them with other nations. 
 
 g 288. An- A nation may appropriate to herself those things of which 
 other reason t ne f ree an( j common use would be prejudicial or dangerous 
 f 'riatin >r the * ^ er ' ^*" 8 ia a second reason for which governments ex- 
 seaVorder- 6 * en ^ their dominion over the sea along their coasts as far as 
 ing on the they are able to protect their right. It is of considerable im- 
 coasts. (80) portance 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 ap- 
 proach of trading nations, and molest their navigation. Dur- 
 ing the war between Spain and the United Provinces, James L, 
 king of England, marked out along his coasts certain bound- 
 aries, within which he declared that he would not suffer any 
 of the powers at war to pursue their enemies, nor even allow 
 
 (79) See further, 1 Chit Com. L. 94, (80) See further, 1 Chit. Com. L. 92, 
 n. 1 ; ib. 98, a. 1. C. n. 2 ; ib. 94, n. 1 ; ib. 95, n. 1 ; Puff. b. 
 
 3, c. 3, a. 6, p. 69. C. 
 206
 
 OF THE SEA. 128 
 
 their armed vessels to stop and observe the ships that should BOOK i. 
 enter or sail out of the ports.* These parts of the sea, thus CHAP ' XXI "' 
 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 suspici9n, 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 par- 
 ticular 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 ves- 
 sel 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. 
 
 It is not easy to determine to what distance a nation may 289. How 
 extend its rights over the sea by which it is surrounded. Bo- far * his P S - 
 dinusf pretends, that according to the common right of all ^^ ? 8 ^ 
 maritime nations, the prince's dominion extends to the distance 
 of thirty leagues from the coast. But this exact determina- 
 tion 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 [ 129 ] 
 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. | Selden relates a solemn act, 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 
 
 * Selden's Mare Clausum, lib. ii. f In his Republic, book i. c. x. 
 
 (81) See further, Puff. b. 4, c. 5, s. 9, j See Selden's Mare Clausum. 
 pp. 167, 8; 1 Chit. Com. L. 99, n. 1 ; g Ibid. lib. 2, cap. xxviii. 
 ib. 100, n. 1 ; ib. 101, n. 2 ; ib. 101, n. 
 4; ib.287, n. 7; ib. 441, n. 5. 207
 
 lUy OF THE SEA. 
 
 BOOK i. measure, by the treaty of Breda, in 1667, at least so far as 
 CHAP, xxin. re | a ted 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 agree4 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 everybody 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.* 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) 
 g 290. The shores of the sea incontestably belong to the nation 
 
 Shores and that possesses the country of which they are a part ; and they 
 ports. (83) b e l on g 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. 
 
 I 291. Bays All we have said of the parts of the sea near the coast, may 
 and straits, be said more particularly, and with much greater reason, of 
 ( 84 ) roads, bays, and straits, as still more capable of being pos- 
 
 [ 130 ] sessed, and of greater importance to the safety of the country. 
 But I speak of bays and straits of small extent, and not of 
 
 * See Selden's Mare Clausum, lib. i. right to cut sea-weed on rocks situate 
 cap. xvi. below low-water mark, but by express 
 
 (82) Pott, b. 3, c. 7, g 132, p. 344. C. grant from the king, or uninterrupted 
 
 (83) See further 1 Chitty's Com- presumption. Benest v. Pipon, Knapp's 
 mercial Law, 100, n. 2. The sea-shore, Rep. 67. 
 
 below low-water mark, primd facie be- (84) See 1 Chitty's Commercial Law, 
 
 longs to the king and all his subjects, 100, n. 3. C. 
 and no subject can claim an exclusive 
 208
 
 OP THE SEA. 130 
 
 those great tracts of sea to which these names are sometimes BOOK i. 
 given, as Hudson's Bay and the Straits of Magellan, over CHAP - XXIIt - 
 which the empire cannot extend, and still less a right of pro- 
 perty. A bay, whose entrance can be defended, may be pos- 
 sessed 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. 
 
 It must be remarked, with regard to straits, that, when 292. 
 they serve for a communication between two seas, the naviga- straits in 
 tion 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 rem- 
 nant of the primitive liberty enjoyed by all mankind. No- 
 thing 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 ves- 
 sels 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 mari- 
 ners. Thus, the king of Denmark requires a custom at the 
 straits of the Sound. Such j ight ought to be founded on the 
 same reasons, and subject to the same rules, as the tolls estab- 
 lished on land, or on a river. (See 103 and 104.) 
 
 It is necessary to mention the right to wrecks a right which 293. 
 was the wretched offspring of barbarism, and which has almost Ri s ht to 
 everywhere fortunately disappeared with its parent. Justice wrecks< ( 86 ) 
 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. 
 
 If a sea is entirely enclosed by the territories of a nation, 294. A 
 and has no other communication with the ocean than by a se . a enclosed 
 channel of which that nation may take possession, it appear s^J^*^ 
 that such a sea is no less capable of being occupied, and be- a nation! 
 coming property, than the land ; and it ought to follow the 
 
 (85) See 1 Chitty's Commercial Law, in general modern cases, Ship Augusta, 
 101, n. 1. C. 1 Hagg. Rep. 16 ; and The Bailiffs, &c., 
 
 (86) The right to wreck is not unfre- of Dumcich v. Sterry, 1 Barn. & Adolph. 
 quently the subject of litigation in the 831. C. 
 
 Municipal Courts of Great Britain ; see 
 
 27 s 2 209
 
 130 OF THE SEA. 
 
 BOOK r. fate of the country that surrounds it. The Mediterranean, 
 CHAP, xxiii. j n f ormer 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 
 [ 131 ] by nature for the use of the countries and nations that sur- 
 round it. Besides, by barring the entrance of the Mediter- 
 ranean 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 When a nation takes possession of certain parts of the sea, 
 
 parts of the ^ takes possession of the empire over them, as well as of the 
 
 ed^Ta* 688 " domain, on the same principle which we advanced in treating 
 
 power are of the land ( 205). These parts of the sea are within the 
 
 within its jurisdiction of the nation, and a part of its territory : the 
 
 jurisdiction, 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 pro- 
 perty, are not inseparable in their own nature, even in a sove- 
 reign state.* As a nation may possess the domain or pro- 
 perty of a tract of land or sea, without having the sovereignty 
 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, Avhen a nation possesses the useful 
 domain of any place whatsoever, she has also the higher do- 
 main and empire, or the sovereignty ( 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, with- 
 out pretending to have any property in it, or any useful do- 
 main. The English have never claimed the property of all 
 the seas over which they have claimed the empire. (88) 
 
 (87) See further, 1 Chitty's Commer- mercial Law, 101, 2, 3. As to the 
 cial Law, 95, n. 3 ; Qrotius, b. 2, c. 3, a. duty of the flay, or the obligation upon 
 13, p. 166. C. other nations to pay a particular mark 
 
 * See Book II. 83. of respect to British men-of-war, by 
 
 (88) As to the British seas, and the striking their flag or lowering their 
 claims of the English of empire over topsail, formerly claimed, and so ob- 
 the seas in general, see Selden's Mare noxious to foreign shipping, see id. 
 Clausum, b. 2, c. 1, p. 182, and other 101, 2 ; Molloy, b. 1, c. 5, ss. 11 ; and 
 authorities collected 1 Chitty's Com- see Postlewaite's Diet, tit Sea, British ; 
 
 210
 
 OF THE SEA. 131 
 
 This is all we have to say in this first book. A more mi- BOOK i. 
 nute detail of the duties and rights of a nation, considered in CHAP - xxlir - 
 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 mak- 
 ing 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. 
 
 Marten's L. Nat. 168, 9172, 175 ; Com. tween ships, see Court de Droit Public 
 
 Dig. Navigation, A. And, as to the Interne et Externe, torn. 2, p. 30 to 84, 
 
 French view of the right of the sea, and id. 396 to 406. C. 
 and of the respects to be observed "03- 
 
 211
 
 133 
 
 BOOK II. 
 
 OF A NATION CONSIDERED IN ITS RELATION TO 
 OTHERS. 
 
 CHAP. I. 
 
 OF THE OFFICES OF HUMANITY BETWEEN NATIONS. 
 
 t. Foun- 1 HE following maxims will appear very strange to cabinet 
 tion'of politicians ; and such is the misfortune of mankind, that, to 
 
 II. 
 
 datio 
 
 t e common manv O f those re fined conductors of nations, the doctrine of 
 
 and mutual , . J . .,, . , . . .. ' 
 
 duties of this chapter will be a subject of ridicule. Be it so ; but we 
 nations, will, nevertheless, boldly 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 non 
 posse, sed hoc verissimum, sine summa justitia rempublicam 
 regi non posse.* 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 
 [ 134 ] confine the mutual duties of men to the observance of justice, 
 properly so called. "Nothing," says he, "is more agree- 
 able 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 ilium, 
 quem hominum fama, beneficiorum memor, in concilium cce- 
 lestium collocavit, quam vivere in solitudine, non modo sine 
 
 * Fragm. ex lib. ii. De Republica. 
 212
 
 COMMON DUTIES OF A NATION, ETC. 13-1 
 
 ullis molestiis, sed etiam in maximis voluptatibus, dbundan- BOOK n. 
 tern omnibus copiis, ut excellas etiam pulchritudine et viribus. CHAP ' Ij 
 Quocirca optima quisque et splendidissimo ingenio longe illam 
 vitam Jiuic anteponit.* In the same chapter, Cicero ex- 
 pressly refutes those who are for excluding foreigners from 
 the benefit of those duties to which they acknowledge them- 
 selves bound towards their fellow-citizens. Qui autem civium 
 rationem dicunt habendam, externorum negant, hi dirimunt 
 communem humani generis societatem; qua sublata, benefi- 
 centia, liberalitas, bonitas, justitia, funditus tollitur ; quse 
 qui tollunt, etiam adversus Deos immortales impii judicandi 
 sunt; ab Us enim constitutam inter homines societatem ever- 
 tunt. 
 
 And why should we not hope still to find, among those 
 who are at the head of affairs, some wise individuals who are 
 convinced of this great truth, that virtue is, even for sove- 
 reigns 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 there- 
 by laid under a necessity of keeping Avithin 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. 
 
 The offices of humanity are those succours, those duties, I 2. Offices 
 which men owe to each other, as men, that is, as social be- of humani - 
 ings formed to live in society, and standing in need of mu - theiTfoun 
 tual assistance for their preservation and happiness, and to dation. 
 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 
 oives 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 [ 1-35 ] 
 for the preservation and happiness of others, as far as such 
 conduct is reconcilable with our duties towards ourselves. 
 
 The nature and essence of man, who, without the assist- 3. Gene- 
 ance of his fellow-men, is unable to supply all his wants, to ral P rlnci P le 
 preserve himself, to render himself perfect, and to live hap- ^ u ^ a * J u _ 
 
 ties of nh- 
 
 * De Officiis, lib. iii. cap. 5. tious. 
 
 213
 
 135 COMMON DUTIES OF A NATION 
 
 BOOK n. pily, plainly show us that he is destined to live in society, in 
 _ CHAP. i. ^ e 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 succeed- 
 ing in this pursuit is, that each individual should exert his 
 efforts first for himself and then for others. Hence it fol- 
 lows, 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, otves 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 capa- 
 ble 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 as- 
 sistance to others. This remark we shall soon illustrate. 
 
 4. Duties Of all the duties of a nation towards itself, the chief ob- 
 of a nation ject is its preservation and perfection, together with that of 
 
 servationTf itS State ' The detail giv<m f them in the firSt b k f thi8 
 
 others! n 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 power- 
 ful 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 con- 
 tracted 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 dispo- 
 [ 136 ] sition 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.
 
 TOWARDS OTHERS. 136 
 
 A powerful league was formed in favour of the United Pro- BOOK n. 
 vinces, when threatened with the yoke of Louis XIV.* When CHAP - * 
 the Turks laid siege to Vienna, the brave Sobieski, king of 
 Poland, saved the house of Austria, f and possibly all Ger- 
 many, and his owp kingdom. 
 
 For the same reason, if a nation is afflicted with famine, 2 5. it ought 
 all those who have provisions to spare ought to relieve her to *^ sist a 
 distress, without, however, exposing themselves to want. (89) ^^ ^[ th 
 But, if that nation is able to pay for the provisions thus fur- famine or 
 nished, it is perfectly lawful to sell them to her at a reason- any other 
 able rate ; for they are not bound to furnish her with what calami ties. 
 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 ex- 
 treme necessity is so essentially conformable to humanity, 
 that the duty is seldom neglected by any nation that has re- 
 ceived 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. | 
 
 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 dif- 
 ference of religion proving no bar to the performance of so 
 humane a deed. The calamities of Portugal have given Eng- 
 land 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, the 
 parliament voted a hundred thousand pounds sterling for the 
 relief of an unfortunate people; the king also added consi- 
 derable 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. 
 
 A nation must not simply confine itself to the preservation f 6. It ought 
 of other states ; it should likewise, according to its power and 106004 " 1 " 110 
 their want of its assistance, contribute to their perfection. J ^ p< ?~ 
 
 other states. 
 
 * In 1672. which would have occasioned more de- 
 
 f He defeated the Turks, and obliged struction than the most disastrous defeat 
 
 them to raise the siege of Vienna, in in battle, England supplied them with 
 
 1683. Peruvian bark, which instantly checked 
 
 (89) Ante, Prelim. $ 14. Upon this and overcame the disease. C. 
 principle, during the late war with J At the famous siege of Paris. 
 France, when the French troops were $ The earthquake by which a great 
 extensively afflicted with a disorder part of that city was destroyed. 
 
 215
 
 136 COMMON DUTIES OF A NATION 
 
 BOOK n. "We have already shown (Prelim. 13) that natural society 
 CHAP. i. j m p OSes on it this general obligation. We are now come to 
 
 [ 137 } 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 pro- 
 curing them itself. Accordingly, a learned nation, if applied 
 to for masters and teachers in the sciences, by another nation 
 desirous- of shaking off its 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 vir- 
 tuous Romans sent ambassadors to Greece to collect good 
 laws, the Greeks were far from rejecting so reasonable and 
 so laudable a request. (90) 
 
 % 1. But not But, though a nation be obliged to promote, as far as lies 
 by force. j n j ts p 0wer? 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 autho- 
 rity over him ; but nations are absolutely free and independ- 
 ent (Prelim. 4). Those ambitious Europeans Avho attacked 
 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 trans- 
 gressions of the law of nature, which treat their parents with 
 inhumanity like the Sogdians, which eat human flesh as the 
 ancient G-auls, <f-<?.*(91) What led him into this error, was, 
 
 (90) See the conduct of Charlemagne but otherwise it requires prudential 
 
 and Alfred the Great. Hume Hist, checks. C. 
 
 The ancient policy was to withhold any * Do Jure Belli et Pacis, lib. ii. cap. 
 
 communication or information in im- xx. $ 11. 
 
 proveinents which might diminish our (91) And see the absurdity of such 
 
 home manufactures ; but the restrictions interference sarcastically well exempli- 
 
 upon the exportations of artificers and fied by Cervantes in his Don Quixote, 
 
 machinery were removed by 5 Qeo. 4, releasing the refractory apprentice and 
 
 c. 97. If there be reciprocity on the compelling his master to beg pardon, 
 
 part of the other nation, the indulgence thereby occasioning the former an in- 
 
 of this liberal policy must bo desirable j finitely more severe chastisement. C. 
 216
 
 TOWARDS OTHERS. 137 
 
 his attributing to every independent man, and of course to BOOK " 
 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 pun- 
 ishment 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. [ 138 ] 
 
 Since nations ought to perform these duties or offices of \ 8. The 
 humanity towards each other, according as one stands in need, nght * re ' 
 and the other can reasonably comply with them, every nation ^11^ { 
 being free, independent, and sole arbitress of her own actions, humanity, 
 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. 
 
 For, 2. These offices being due only in necessity, and by a $ 9. The 
 nation which can comply with them without being wanting to "g^t of 
 itself ; the nation that is applied to has, on the other hand, a J ud s in s 
 right of judging whether the case really demands them, andjj^yj^ 
 whether circumstances will allow her to grant them consist- be granted, 
 ently 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 patiently acquiesced in. We have 
 very lately seen a prudent performance of this duty on the 
 part of Russia : she generously assisted Sweden when threaten- 
 ed with a famine, but refused to other powers the liberty of 
 purchasing corn in Livonia, from the circumstance of stand- 
 ing herself in need of it, and, no doubt, from weighty political 
 motives likewise. 
 
 Thus, the right which a nation has to the offices of humanity ? 10 - A na - 
 is but an imperfect one: she cannot compel another nation to tio ^ is no * * 
 the performance of them. The nation that unreasonably otherVper- 
 refuses them offends against equity, which consists in acting form those 
 
 28 T 217
 
 138 COMMON DUTIES OF A NATION 
 
 BOOK II. 
 CHAP. -I. 
 
 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. 
 
 It is impossible that nations should mutually discharge all 
 wrong! " D these several duties .if they do not love each other. This is 
 1 11. Mu- the pure source from which the offices of humanity should 
 tual love of proceed ; they will retain the character and perfection of it. 
 nations. Then nations will be seen sincerely and cheerfully to help each 
 other, earnestly to promote tneir common welfare, and culti- 
 vate peace, without jealousy or distrust. 
 
 g 12. Each A real friendship will be seen to reign among them ; and 
 nation t n j s happy state consists in a mutual affection. Every nation 
 tivite the" 1 i g obliged to cultivate the friendship of other nations, and 
 friendship carefully to avoid Avhatever might kindle their enmity against 
 of others, her. Wise and prudent nations often pursue this line of con- 
 duct from views of direct and present interest : a more noble, 
 [ 139 ] 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 ? 
 
 g 13. To If a man ought to qualify himself for becoming useful to 
 
 perfect itself other men, and a citizen, for rendering useful services to his 
 
 with a view COU ntry and fellow citizens, a nation likewise, in perfecting 
 
 vanta e of herself, ought to have in view the acquisition of a greater 
 
 others, and degree of ability to promote the perfection and happiness of 
 
 set them other nations ; she should be careful to set them good examples, 
 
 good exam- an( j avo id 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. 
 
 g 14. To Glory being a possession of great importance to a nation, 
 
 take care of as we have shown in a particular chapter expressly devoted 
 
 their glory. f. Q ^e su bj ec t; 5 * th e 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. 
 
 g 15. Dif- From the manner in which we have established the obliga- 
 ference of ^{ on O f performing the offices of humanity, it plainly appears 
 religion ^ Q ^ go i e iy founded on the nature of man. Wherefore, no 
 
 * Book I. chap. XT. 
 218
 
 TOWARDS OTHERS. 
 
 nation can refuse them to another, under pretence of its pro- BOOK n 
 fessing a different religion : to be entitled to them, it is suffi- 
 
 CHAP. I. 
 
 cient that the claimant is our fellow-creature. A conformity ought not to 
 of belief and worship may become a new tie of friendship P reclude the 
 between nations : but no difference in these respects can war- humanity 
 rant us in laying aside the character of men, or the sentiments 
 annexed to it. As AVC 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 too 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^hips 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 Pro- 
 testants. (92) [ 140 ] 
 How happy would mankind be, were these amiable precepts 1 16. Rule 
 of nature everywhere observed ! Nations would communicate and measure 
 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 re- 
 lieving 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.* But disorderly pas- 
 sions, and private and mistaken interest, will for ever prevent 
 its being realized. Let us, then, consider what limitations 
 
 (92) He was much celebrated and man, it necessarily follows, that, ac- 
 
 spoken of in Lord Charlemont's Tra- cording to the intentions of nature, all 
 
 vels in A. D. 1742. C. mankind must have one common in- 
 
 * Here, again, let us call in the terest Ergo unum debet esse omni- 
 authority of Cicero to our support, bus propositum, ut eadem sit utilitas 
 " All mankind (says that excellent uniuscujusque et universorum : quam 
 philosopher) should lay it down as si ad se quisque rapiat, dissolvetur 
 their constant rule of action, that in- omnis humana consociatio. Atque si 
 dividual and general advantage should etiam hoc natura prsescribit, ut homo 
 be the same : for, if each man strives to homini, quicunque sit, ob earn ipsam 
 grasp every advantage for himself, all causani, quod is homo sit, consultum 
 the ties of human society will be velit, necesse est, secundum eandem 
 broken. And, if nature ordains that naturam, omnium utilitatem esse corn- 
 man should feel interested in the wel- munem. De Offic. lib. iii. cap. iv. Note 
 fare of his fellow-man, whoever he be, ED. 1797. 
 and for the single reason that he is a 
 
 219
 
 140 COMMON DUTIES OF A NATION 
 
 BOOK n. the present state of men, and the ordinary maxims and con- 
 CHAP - * duct 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 injus- 
 tice 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 oppress- 
 ing 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 
 [ 141 ] avidity of those nations which seek wholly and exclusively to 
 engross it, thus, I say, these circumstances authorize a na- 
 tion 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 measures 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 endea- 
 vouring, 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 de- 
 clares 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 
 
 (93) The same prudential consider- granted without equivalent to another 
 
 ation extends also in time of peace,- state, she may declare war against tho 
 
 for, who can anticipate how soon after nation who conferred them ? C. 
 advantages have been conferred or 
 220
 
 TOWARDS OTHERS. 141 
 
 to prevent the best method of ship-building from being carried BOOK u. 
 out of the kingdom. CHAP ' ' 
 
 This caution is to be carried farther, with respect to na- 
 tions more justly suspected. Thus, when the Turks were 
 successfully pursuing their victorious career, and rapidly ad- 
 vancing to the zenith of power, all Christian nations ought, 
 independent of every bigoted consideration, to have consi- 
 dered them as enemies ; even the most distant of those na- 
 tions, though not engaged in any contest with them, would 
 have been justifiable in breaking off all commerce with a peo- 
 ple who made it their profession to subdue by force of arms 
 all who would not acknowledge the authority of their prophet. 
 
 Let us further observe, with regard to the prince in par- g ir. Parti- 
 ticular, that he ought not, in affairs of this nature, to obey cuiar limita- 
 without reserve all the suggestions of a noble and generous tlon Wlth 
 heart impelling him to sacrifice his own interests to the ad-^f^u^ 
 vantage 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 lies at stake.* 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 advan- 
 tage of the state. As to the common good of human society, 
 he ought to pay the same attention to it as the nation he re- 
 presents would be obliged to pay were the government of her 
 affairs in her own hand. 
 
 But, though the duties of a nation towards herself set is. No 
 bounds to the obligation of performing the offices of human- nation 
 ity, they cannot in the least affect the prohibition of doing u s ht to in * 
 any harm to others, of causing them any prejudice, in a jure 
 
 word, of injuring them f If every [ 142 ] 
 
 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 (Pre- ,. 
 
 lim. 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 
 
 * De Offic. lib. iii. cap. v. prejudice (to prejudice), Hester (to 
 
 f Lezer (professedly borrowed from wound, or hurt), are not of precisely the 
 
 the Latin Icedo) is the term used by same import," and that, by the word 
 
 the author, who, in order the better to lexer (which is hete rendered injure) he 
 
 explain his meaning, proceeds to in- means, " in general, causing imperfection 
 
 form us, that "nuire (to hurt), offenser in the injured party, or in his condition 
 
 (to offend), faire tort (to wrong), porter rendering his person or his condition 
 
 dommage (to cause detriment), porter less perfect." 
 
 T2 221
 
 142 COMMON DUTIES OF A NATION 
 
 BOOK n. words, to injure them. (94) And, since the perfection of a 
 _ CHAP - * nation consists in her aptitude to attain the end of civil so- 
 ciety 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 manoeu- 
 vres tending to create disturbdnce 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 ful- 
 filling the common duties of humanity, and even the refusal 
 of these duties or offices, is not an injury. To neglect or re- 
 fuse contributing to the perfection of a nation, is not impair- 
 ing 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 
 
 (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 compe- 
 tition 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 sepa- 
 rate independence has been acknow- 
 ledged. A contract made between a 
 revolted colony in that character with 
 the subject of another state that has 
 not as yet recognised such revolted co- 
 lony 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 & 
 Buss. 297 ; Thompson v. Powles, 2 Sim. 
 Rep. 202, 3; De Wutz v. Hend ricks, 
 
 2 Bing. 314; Yrisarri v. Clement, 
 11 Moore, 308; 2 Car. & P. 223; 
 
 3 Bing. 432; for, such direct recogni- 
 tion of such a revolted colony must 
 necessarily be offensive to the princi- 
 pal state to which it belonged; and, in 
 the American war, Great Britain de- 
 clared war against France and other 
 countries on the ground of their im- 
 proper interference between her and 
 her colonies, Thompson v. Powlet, 2 Sim. 
 
 222 
 
 Rep. 203, 212, 3, and in Bire v. Thomp- 
 son, cited id. and id. 222, Lord Eldon 
 refused to take notice of the Republic 
 of Colombia: and it seems that, if a 
 bill in equity falsely state that the co- 
 lony had been recognised as an inde- 
 pendent state, the court may take ju- 
 dicial notice of the contrary, and decree 
 or proceed accordingly ; and the mere 
 fact of this country having for com- 
 mercial purposes sent a consul to a re- 
 volted colony, is not equivalent to a 
 state recognition of its independence; 
 Taylor v. Barclay, 2 Sim. 213, and 
 Yrisarri v. Clement, 11 Moore, 308 ; 2 
 Carr. & 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 govern- 
 ment to which a subject belongs, is il- 
 legal, 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 go- 
 vernment. Observations in Thompson 
 v. Powles, 2 Sim. Rep. 203, and Hen- 
 nings v. Rothschild, 12 Moore, 559; 4 
 Bing. 315, 335; 9 Bar. & Cres. 470; 
 Yriarri v. Clement, 11 Moore, 308; 2 
 Car. & P. 223; 3 Bing. 432. {See 
 The Santissima Trinidada, 7 Wheat. 
 Rep. 283.}
 
 TOWARDS OTHERS. 
 
 142 
 
 condition, we are not guilty of an injury: we are doing BOOK n. 
 what is lawful, or even what we ought to do. The damage CHAP ' *' 
 which accrues to the other is no part of our intention : it is 
 merely an accident, the imputability of which must be deter- 
 mined 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. 
 
 Nothing is more opposite to the duties of humanity, nor 19. of- 
 more contrary to that society which should be cultivated by fences - 
 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 [ 143 j 
 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 de- 
 struction of that republic. (96) 
 
 The maxims laid down in this chapter, those sacred pre-20. Bai 
 cepts of nature, were for a long time unknown to nations, custom of 
 The ancients had no notion of any duty they owed to nations the ancients- 
 with whom they were not united by treaties of friendship.* 
 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.f When will the happy time come that 
 they shall behave as such ? 
 
 (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 ani- 
 mosity between him and the citizens 
 of the republic, and to create discord 
 between our king and people and said 
 Bonaparte and said republic. Infor- 
 mation against Peltier filed in Crown 
 Office, K. B., in Michaelmas Term, 
 43 Geo. 31 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. 
 
 * 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 with- 
 out advocates who maintained, that, 
 by the 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. 
 
 f See 1, a fine passage of Cicero.
 
 143 MUTUAL COMMERCE OF NATIONS. 
 
 BOOK II. 
 CHAP. II. 
 
 CHAP. II. 
 
 OF THE MUTUAL COMMERCE BETWEEN NATIONS. 
 
 ^ l o\>ifT ALL men ought to find on earth the things they stand in 
 tfonofTa"- n eed of. In the primitive state of communion, they took them 
 tions to car- wherever they happened to meet with them, if another had 
 ry on mu- no t before appropriated them to his own use. The introduc- 
 merce m ^ on ^ Dominion an( ^ 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 vieius 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 
 [ 144 ] 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 certainty of procuring what it wants, will employ its land 
 and its industry in the most advantageous manner, and man- 
 kind in general prove gainers by it. Such are the foundations 
 of the general obligation incumbent on nations reciprocally to 
 cultivate commerce. (97) 
 
 (97) The restrictions on trade, which freedom being very favourable to corn- 
 
 have been enforced absolutely or con- merce, it is implied in the duties of na- 
 
 ditionally, by almost all the powerful tions that they should support it as far 
 
 nations of the world, have been the as possible, instead of cramping it by 
 
 cause of a thousand wars, and the unnecessary burdens or restrictions; 
 
 ground-work of innumerable treaties; and this position is supported by the 
 
 and, therefore, it is important that we reasons thus urged by Vattel (supra, 
 
 should give them full consideration. g 21). 
 
 With respect to the freedom of trade, It was this feeling that influenced 
 
 it has been laid down by the wisest of that celebrated statesman, Mr. Pitt, in 
 
 politicians and best of men, that every concluding the commercial treaty with 
 
 nation ought not only to countenance France, in 1786. Great Britain and 
 
 trade as far as it reasonably can, but France had, for centuries before, con- 
 
 even to protect and favour it; and that, trary to every sound principle of policy, 
 224
 
 MUTUAL COMMERCE OF NATIONS. 
 
 144 
 
 Every nation ought, therefore, not only to countenance BOOKII. 
 trade, as far as it reasonably can, but even to protect and fa- CHAP - " 
 vour it. The care of the public roads, the safety of travel- 22. They 
 lers, the establishment of ports, of places of sale, of well- should fa- 
 regulated fairs, all contribute to this end. And, where these vour tra(le ' 
 are attended with expense, the nation, as we have already ob- 
 served (Book I. 103), may, by tolls and other duties equita- 
 bly proportioned, indemnify itself for its disbursements. 
 
 Freedom being very favourable to commerce, it is implied, 23. Free- 
 in the duties of nations, that they should support it as far as dom of 
 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 corn- 
 
 acted as rival enemies,* and their com- 
 mercial policy was dictated by the 
 same spirit which prompted their un- 
 happy wars; insomuch, that, though 
 they possessed the materials of a most 
 extensive commerce the one abound- 
 ing 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 bjr a complicated sys- 
 tem of restraint and heavy duties.f 
 The object of the commercial treaty 
 alluded to was, to abolish those per- 
 nicious 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 ex- 
 plained by Mr. Pitt, when it was sub- 
 mitted to Parliament; and the senti- 
 ments which he expressed gave to this 
 measure a remarkable character of 
 moderation and wisdom. In reply to an 
 argument inculcating constant jealousy 
 of France,^ 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 rum 1 Was the ne- 
 cessity of a perpetual animosity with 
 France so evident and so pressing that 
 for it we were to sacrifice every com- 
 
 mercial advantage we might expect 
 from a friendly intercourse with that 
 country 1 or, was a pacific connection 
 between the two kingdoms so highly 
 offensive that even an extension of com- 
 merce could not counterpoise it 1" To- 
 wards the close of the same speech, he 
 observes, " The quarrels between 
 France and Britain had too long oon- 
 tinued to harass not only those two 
 great nations themselves, but had fre- 
 quently 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 de- 
 struction 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 calcu- 
 lated for the more amiable purposes 
 of friendly intercourse and mutual bene- 
 volence." "Considering the treaty," 
 he continued, " in a political view, he 
 should not hesitate to contend against 
 the too frequently advanced doctrine, 
 that France was and must be the un- 
 alterable 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 expe- 
 rience of nations nor in the history of 
 man. It was a libel on the constitution 
 of political societies, and supposed diabo- 
 lical malice in the original frame of 
 man." C. 
 
 * 2 Smith's Wealth of Nations, pp. 226-7, 252-3 ; Tucker's Pamphlet, Cm 
 Bono. 
 
 f See Smith's Wealth of Nations, vol. 4, 169, per Buchanan; and see An- 
 derson's Hist. Com. vol. 4, pp. 634 to 639. 
 
 *9 225
 
 144 MUTUAL COMMERCE OF NATIONS. 
 
 BOOK ii. merce, are deservedly to be reprobated, unless founded on 
 CHAP, ii. ver y important reasons arising from the public good. 
 24. Right Every nation, in virtue of her natural liberty, has a right 
 of trading, to trade with those who are willing to correspond with such 
 belonging to ntent j ong . an( j to mo i es ^ her i n ^he 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 front any commerce with the In- 
 dians ; but such a pretension, no less iniquitous than chime- 
 rical, 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. ^Chis 
 common right of all nations is, at present, generally acknow- 
 ledged under the appellation of freedom of trade. 
 
 25. Each But, although it be in general the duty of a nation to 
 nation is carry on commerce Avith others, and, though each nation has 
 
 sole judge & right to trade with those countries that are willing to en- 
 of the pro- . . , , , . , p , . 
 
 priety of courage her on the other hand, a nation ought to decline a 
 
 commerce commerce which is disadvantageous or dangerous (Book I. 
 
 on her own 98) ; and since, in case of collision, her duties to herself are 
 
 part.(99) paramount to her duties to others, she has a full and clear 
 right to regulate her conduct, in this respect, by the consi- 
 deration 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, there- 
 fore, 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 re- 
 fusal, much less to make use of compulsion. She is free in 
 [ 145 ] 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. Ne- These few remarks, together with what we have already 
 
 cessity of __ 
 
 commercial ^ Jt ig & general ^ of the law positioni It there seems that an ex _ 
 
 of nations, that, in time of peace, no elusive trade may be acquired by a 
 
 nation is entitled to limit or impose treaty with the nations of India who 
 
 regulations upon the commerce which have not before entered into a rcstrio 
 
 any other independent state may think tive treaty. See also 1 Chit. Com. L. 
 
 fit to carry on, either externally, with 76. C. 
 
 the natives of other independent states, (99) See further, 1 Chit. Com. L. 
 
 or internally, amongst its own subjects. 80, n. 2 ; Grotius, 158 ; Puff. b. 4, c. 6, 
 
 Puffend. b. 4, c. 5, s. 10, p. 168 ; Mar- s. 10, p. 168. 
 
 ten's L. N. 152-3 ; where sec the dif- (100) See, more fully, 1 Chitty's 
 
 ferent authorities in support of this Com. L. 35. 
 226
 
 MUTUAL COMMERCE OF NATIONS. 145 
 
 said on the subject (Book I. Chap. VIII.), may suffice to BOOK n. 
 establish the principles of the natural law of nations respect- CHAP - " 
 ing 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 na- 
 tion 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'. Where- 
 fore, if they wish to secure to themselves any definite and 
 constant advantages, they must procure them by treaties. 
 
 Since a nation has a full right to regulate herself in com- 27. Gene- 
 mercial affairs by what is useful or advantageous to her, she ral rale . 
 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 join- 
 ing 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 allowa- 
 ble between nations ; nor can the execution of it be lawfully 
 opposed. But those commercial treaties alone are in them- 
 selves just and commendable, which pay to the general inte- 
 rest of mankind as great a degree of respect as is possible 
 and reasonable in the particular case. 
 
 As express promises and engagements should be inviolable, 28. Duty 
 every wise and virtuous nation will be attentive to examine of nations 
 and weigh a commercial treaty before she concludes it, an 
 to take care that she be not thereby engaged to any thing tieg * 
 contrary to the duties which she owes to herself and others. 
 
 Nations may, in their treaties, insert such clauses and con- 29. Per- 
 ditions as they think proper ; they are at liberty to make P etual or 
 them perpetual, or temporary, or dependent on certain events. Jj^^fr 
 It is usually most prudent not to engage for ever, as circum- p^^g i 
 stances may afterwards intervene, by which the treaty might t j- eaties re . 
 become very oppressive to one of the contracting parties. A vocable at 
 nation may confine a treaty to the grant of only a precarious pleasure, 
 right reserving to herself the liberty of revoking it at plea- 
 sure. We have already observed (Book I. 94) that a simple 
 permission does not, any more than long custom (Ibid. 95),
 
 146 MUTUAL COMMERCE OF NATIONS. 
 
 BOOK n. give any perfect right to a trade. These things namely. 
 CHAP, n. permission and customs are therefore not to be confounded 
 with treaties, not even with those which give only a preca- 
 rious right. 
 
 so. No- When once a nation has entered into engagements by 
 
 thing con- treaty, she is no longer at liberty to do, in favour of others, 
 
 tenor of a con t rai T t tne tenor of the treaty, what she might otherwise 
 
 treaty can have granted to them agreeably to the duties of humanity or 
 
 be granted the general obligation of mutual commerce ; for she is to do 
 
 to a third f or others no more than what is in her power ; and, having 
 
 party- 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 But it will be asked, how and on what occasions a nation 
 
 far lawful to may enter into engagements which deprive her of the liberty 
 
 Slat "the 7 to fulfil her duties to others - As the duties we owe to our - 
 liberty of selves are paramount to those we owe to others, if a nation 
 trading with finds her safety and substantial advantage in a treaty of this 
 other na- nature, she is unquestionably justifiable in contracting it, espe- 
 tions> cially 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), engage- 
 ments 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 op- 
 pose it ( 27). 
 
 32. A na- Every one is at liberty to renounce Ms right ; a nation, 
 tion may therefore, may lay a restriction on her commerce in favour 
 corameroe ^ anotner nation, and engage not to traffic in a certain kind 
 in favour of ^ goods, or to forbear trading with such and such a country, 
 another. &c. And, in departing from such engagements, she acts 
 against the perfect right of the nation with which she has con- 
 tracted, 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 
 [ 147 ] traffic with her; each one remaining free to embrace or de- 
 cline a particular branch of commerce, as she shall judge most 
 advantageous to the state. 
 Nations not only carry on trade for the sake of procuring
 
 MUTUAL COMMERCE OF NATIONS. 147 
 
 necessary or useful articles, but also with a view to make it BOOK n. 
 a source of opulence. Now, wherever a profit is to be made, CHAP, n. 
 it is equally lawful for every one to participate in it : but the 33. A na- 
 niost diligent may lawfully anticipate the others by taking tion may 
 possession of an advantage which lies open to the first occu- a PP r P riate 
 pier ; he may even secure the whole entirely to himself, if ^2^. 
 he has any lawful means of appropriating it. When, there- branch of 
 fore, a particular nation is in sole possession of certain articles, trade, 
 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 un- 
 reasonable 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 speak- 
 ing, and according to external right, the owner of a commo- 
 dity may either keep it or set what price he pleases on it. 
 Thus, the Dutch, by a treaty with the king of Ceylon, have 
 wholly engrossed the cinnamon trade : yet, whilst they keep 
 their profits within just limits, other nations have no right to 
 complain. 
 
 But, were the necessaries of life in question were the 
 monopolist inclined to raise them to an excessive price 
 other nations would be authorized by the care of their own 
 safety, and for the advantage of human society, to form a 
 general combination in order to reduce a greedy oppressor to 
 reasonable terms. The right to necessaries is very different 
 from that to things adapted only to convenience and pleasure, 
 which we may dispense with if they be too dear. It would 
 be absurd that the subsistence and being of other nations 
 should depend on the caprice or avidity of one. 
 
 Among the modern institutions for the advantage of com- 34. Con- 
 merce, one of the most useful is that of consuls, or persons suk - ( 11 ) 
 
 (101) See further as to consuls, post, and see decisions Albreton v. Sussman, 
 
 B. 4, ch. 8, s. 75, p. 461. This and 2 Ves. & B. 323 ; 4 Bar. & Cres. 886; 
 
 the following sections are much too 8 Moore's Rep. 632; 7 T. R. 251 ; 
 
 concise upon the important subject of 8 East, 364 ; 2 Chalm. Opin. 294. A 
 
 consuls. See more fully 1 Chitty's foreign consul cannot sue a merchant 
 
 Commercial Law, 48 to 73 ; statute here for any supposed services in that 
 
 6 Geo. 4, c. 87 ; Warden on Consular character De Lima v. Haldimand, 
 
 Establishments, Paris, A. p. 1813; 1 R yan & Moody, 45 : nor is he pri- 
 
 Madame de Steck, a Berlin, 1790 ; vileged from arrest, Vweash v. Belcher, 
 
 Anderson's Hist. Commerce, index, 3 Mau. & Selw. 284. {He is liable 
 
 titles, Conservator," and Consul ;" as garnishee in the case of a foreign 
 
 U 229
 
 147 MUTUAL COMMERCE OF NATIONS. 
 
 BOOK ii. residing in the large trading cities, and especially the sea- 
 CHAP. ii. _ p 0r t s> O f foreign countries, with a commission to watch over 
 the rights and privileges of their nation, and to decide dis- 
 putes 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 mus.t 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 
 [ 148 ] 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 account- 
 able 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 the 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 inde- 
 
 rdent of the ordinary criminal justice of the place where 
 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 inviola- 
 bility 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. 
 
 attachment in the State courts, Kid- Ravara, 2 Ball. Rep. 297; Conim. v. 
 
 der/mv. J fl%er,2Miles'sRep.242; and Kozloff, 5 Serg. & Rawle, 545; The 
 
 to indictment for misdemeanour in the State v. De la Forest, 2 Nott & McCord's 
 
 courts of the United States, which Rep. 545, contra.} 
 have exclusive jurisdiction, U. States v. 
 230
 
 DIGNITY AND EQUALITY OF NATIONS. 148 
 
 Wicquefort, in his treatise of The Ambassador, Book I. BOOK n. 
 5, says, that consuls do not enjoy the protection of the law CHAP - " 
 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, com- 
 plained 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 An- 
 cona, 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 prohi- 
 bition, he had caused goods to be unloaded in a time of con- [ 149 ] 
 tagion. 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 ex- 
 press conditions, is supposed to receive him on the footing 
 established by custom. 
 
 CHAP. III. 
 
 OF THE DIGNITY AND EQUALITY OF NATIONS OF TITLES, AND CHAP, in. 
 OTHER MARKS OF HONOUR. 
 
 EVERY nation, every sovereign and independent state, 35. Dig- 
 deserves consideration and respect, because it makes an im- nit y of na - 
 mediate figure in the grand society of the human race, is tions r 
 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 indivi- 
 dual, 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 im- 
 portance to their safety and tranquillity. 
 
 231
 
 149 DIGNITY AND EQUALITY OF NATIONS. 
 
 BOOK ii. We have already observed (Prelim. 18) that nature has 
 
 CHAP, in. established a perfect equality of rights between independent 
 
 3G. Their nations. Consequently, none can naturally lay claim to any 
 
 equality, 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. Pre- And since precedency or pre-eminence of rank is a prero- 
 cedency. gative, 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 mere 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 natu- 
 rally 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 
 [ 150 ] comer cannot dispossess any one of the honours he has en- 
 joyed ; and he must produce very strong reasons, before he 
 can obtain a preference. 
 
 38. The The form of government is naturally foreign to this ques- 
 formofgo- tion. The dignity, the majesty, resides originally in the 
 vemmentis b 0( jy O f t ^ e state . t j lat O f t h e sovereign is derived from his 
 thhTques- representing the nation. And, can it be imagined that a 
 tion. 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. For- 
 merly, 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 In consequence of what we have just established, if the 
 state ought f orm O f government in a nation happens to be changed, she 
 rank^nof 8 w ^ 8 *^ preserve the same honours and rank of which she 
 withstand- was before in possession. When England had abolished roy- 
 ing any alty, Cromwell would suffer no abatement of the honours that 
 changes in na ^ been paid to the crown or to the nation; and he every- 
 itT f om- f where maintained the English ambassadors in the rank they 
 ment . had always possessed. 
 
 40. In If * ne grades of precedency have been settled by treaties, 
 this respect, or by long custom founded on tacit consent, it is necessary 
 treaties and to conform to the established rule. To dispute with a prince
 
 DIGNITY AND EQUALITY OP NATIONS. 150 
 
 the rank he has acquired in this manner, is doing him an BOOK n. 
 injury, inasmuch as it is an expression of contempt for him, CHAP, m. 
 or a violation of engagements that secure to him a right, established 
 Thus, by the injudicious partition between the sons of Charle- customs 
 magne, the elder having obtained the empire, the younger, ou g ht * be 
 who received the kingdom of France, yielded precedency to serve ' 
 him the more readily, as there still remained at that time a 
 recent idea of the majesty of the real Roman empire. His 
 successors 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 a superiority over 
 all kings, and, in a word, make him the temporal head of 
 Christendom.* And it, in fact, appears that many empe- 
 rors 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 Mezeray f the precautions taken [ 151 ] 
 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,! 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. || 
 
 As a nation may confer on her conductor what degree of 41. Of the 
 authority and what rights she thinks proper, she is equally name ***& 
 
 * Bartolus went so far as to say, that Count Provana, the king of Sardinia's 
 
 " all those were heretics who did not minister, to sign a deed, in which he 
 
 believe that the emperor was lord of the declared that neither his own sovereign 
 
 whole earth." See Bodinus's Republic, nor any other prince had a right to dis- 
 
 book i. ch. ix. p. m. 139. pute pre-eminence with the emperor. 
 
 t History of France, explanation of Its contents being made public, the 
 
 the medals of Charles V. kings made such heavy complaints on 
 
 j In his Republic, p. 138. the occasion, that Provana was re- 
 
 U Pentherrieder, minister plenipo- called, and the emperor ordered his 
 
 tentiary of the emperor at the congress minister to suppress the deed, affect- 
 
 of Cambray, made an attempt to insure ing, at the same time, a profound igno- 
 
 to his master an incontestable superi- ranee of the whole transaction : and 
 
 ority and pre-eminence over all the thus the affair was dropped. Memoirs 
 
 other crowned heads. He induced of Mons. de St. Philippe, vol. iv. p. 194. 
 30 u 2 233
 
 151 DIGNITY AND EQUALITY OF NATIONS. 
 
 BOOK ii. free in regard to the name, the titles, and honours with 
 CHAP, in. -which she may choose to decorate him. But discretion and 
 given by the the care of her reputation require that she should not, in 
 nation to its this respect, deviate too far from the customs commonly 
 conductor, 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 pos- 
 terity, saying to them, as it were, I have acquired a title for 
 [ 152 ] 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."* 
 
 42. Whe- If the conductor of the state is sovereign, he has in his 
 
 ther a sove- hands the rights and authority of the political society ; and 
 
 reign may consequently he may himself determine what title he will 
 
 what title assume, and what honours shall be paid to him, unless these 
 
 and honours have been already determined by the fundamental laws, or 
 
 he pleases, 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. itight But foreign nations are not obliged to give way to the will 
 of other na- O f a sovereign who assumes a new title, or of a people who 
 
 respecT CaH thelr Chief ^ What name the y P lease 't 
 
 * Memoirs of the House of Branden- -" Olivarius, Dominus Protector An- 
 
 burg. glise, Scotise, et Hibernise, Ludovico 
 
 f Cromwell, in writing to Louis the XIV. Francorum Regi Christianissime 
 
 Fourteenth, used the following style : Rex." And the subscription was 
 
 234
 
 DIGNITY AND EQUALITY OF NATIONS. 152 
 
 However, if this title has nothing unreasonable, or con- BOOK n. 
 trary to received customs, it is altogether agreeable to the CHAP - m - 
 mutual duties which bind nations together, to give to a sove- 44. Their 
 reign or conductor of a state the same title that is given him duty, 
 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;* 
 and at present, except in a few instances founded on parti- 
 cular 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, notwithstanding 
 the small extent of his power, is accustomed to receive from 
 his neighbours the title of king, distant nations who would j~ 153 ~j 
 carry on an intercourse with him cannot refuse him that 
 title. It belongs not to them to reform the customs of distant 
 countries. 
 
 The sovereign who wishes constantly to receive certain 45. How 
 titles and honours from other powers, must secure them by* ltlesand 
 treaties. Those who have entered into engagements in this j 
 way are obliged to conform to them, and cannot deviate cured. 
 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 ac- 
 knowledged 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 confi- 
 dence to expect that the superstition of princes and nations 
 would allow them so sublime a prerogative. But it was 
 
 In Aula nostra Alba. Vester bonus * At the famous treaty of West- 
 
 amicus." The court of France was phalia, the plenipotentiaries of France 
 
 highly offended at this form of address, agreed with those of the emperor, 
 
 The ambassador Boreel, in a letter to that the king and queen writing 
 
 the Pensionary De Witt, dated May 25, with their own hand to the emperor, 
 
 1655, said that Cromwell's letter had and giving him the title of majesty, 
 
 not been presented, and that those who he should answer them, with his own 
 
 were charged with the delivery of it, hand, and give them the same title." 
 
 had withheld it, through an apprehen- Letter of the plenipotentiaries to M. 
 
 sion of its giving rise to some misunder- de Brienne, Oct. 15th, 1646. 
 standing between the two countries.
 
 153 DIGNITY AND EQUALITY OF NATIONS. 
 
 BOOK ii. eclipsed at the revival of letters.* The emperors of Ger- 
 CHAP, in. m any, who formed the same pretensions, were at least coun- 
 tenanced by the example of the ancient Roman emperors. 
 They only want the same power in order to have the same 
 right. 
 
 46. We In default of treaties, we ought, with respect to titles, and, 
 must coi> j n genial, every other mark of honour, to conform to the 
 neral cusT" ru ^ e established by general custom. To attempt a deviation 
 torn. (102) 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 incon- 
 sistent with sound policy and with the duties that nations owe 
 to each other. (102) 
 
 47. Mu- The greatest monarch ought to respect in every sovereign 
 
 tual respect the eminent character with which he is invested. The in- 
 
 which sove- dependence, the equality of nations, the reciprocal duties of 
 
 to 1 each We hunrnmtVj all these circumstances should induce him to pay, 
 
 other. 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 be- 
 yond 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 ob- 
 served, a very important personage in human society, it is 
 natural, that, in matters merely ceremonial, and not deroga- 
 tory to the equality of rights between nations, he should 
 [ 154 ] receive honours to which a petty prince can have no preten- 
 sions : and the latter cannot refuse to pay the former every 
 mark of respect which is not inconsistent with his own inde- 
 pendence and sovereignty. 
 
 48. How Every nation, every sovereign, ought to maintain their 
 a sovereign dignity ( 35) by causing due respect to be paid to them ; 
 
 ought to 
 
 maintain his 
 
 dignity. * Catholic princes receive still from of 2<1 vol. p. 324. See, as to the sea 
 
 (103) the pope titles that relate to religion, and incidents, ante, 125 and 131 in 
 
 Benedict XIV. gave that of "Most notes ; and Cours de Droit Public, torn. 
 
 Faithful" to the king of Portugal ; 2, p. 80 to 84, and 396 to 406. C. 
 and the condescension of other princes (103) The House of Lords recently, 
 
 connived at the imperative style in rather facetiously, maintained the dig- 
 
 which the bull is couched. It is dated nity of the king of Spain, by declining 
 
 December 23, 1748. to give him costs, on the same principle 
 
 (102) Formerly all nations used to that our king do*-) not recover costs, 
 
 observe, in the British seas, the mark saying, we will not disparage the dig- 
 
 of honour, by lowering the flag or top- nity of the king of Spain by giving 
 
 sail to an English man of war, called him costs. Hewlett \. King of Spain, 
 
 the duty of the flag. See 1 Chitty's on appeal from Chancery to House of 
 
 Commercial Law, 102; and see end Lords, 1 Dow Rep. New Series, 177. 
 236
 
 OF THE RIGHT TO SECURITY, ETC. 154 
 
 and, especially, they ought not to suffer that dignity to be BOOK n. 
 impaired. If, then, there are titles and honours, which, by CHAP, in. 
 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 omis- 
 sion 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. 
 
 CHAP. IV. 
 
 OF THE RIGHT TO SECURITY, AND THE EFFECTS OF THE SOVE- CHAP. TV. 
 REIGNTY AND INDEPENDENCE OF NATIONS. (104) 
 
 IN vain does nature prescribe to nations, as well as to indi- 49. Right 
 viduals, the care of self-preservation, and of advancing their to security, 
 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 re- 
 spected, their effects are very uncertain. It is this right 
 to preserve herself from all injury that is called the right to 
 security. 
 
 It is safest to prevent the evil when it can be prevented. 50. Itpro- 
 A nation has a right to resist an injurious attempt, and to d . uces the 
 make use of force and every honourable expedient against 
 
 (104) As to the independence of Public. Paris, A. D. 1830, torn. 2, 1st 
 nations, see in general, Cours de Droit part, article ii. pp. 3 to 15. 
 
 237
 
 154 OF THE RIGHT TO SECURITY, ETC. 
 
 BOOK n. whosoever is actually engaged in opposition to her, and even 
 
 CHAP, iv. 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 
 
 [ 155 ] aggressor. 
 
 51. and When the evil is done, the same right to security autho- 
 that of ob- rizes the offended party to endeavour to obtain a complete 
 t ^tio n re ~ reparation, and to employ force for that purpose, if neces- 
 sary. 
 
 52. and Finally, the offended party have a right to provide for 
 the right of their future security, and to chastise the offender, by inflict- 
 pumshmg. -^ U p 0n kj m a punishment capable of deterring him thence- 
 forward 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 in- 
 justice. 
 
 53. Right If, then, there is any\here a nation of a restless and mis- 
 
 of all na- chievous disposition, ever ready to injure others, to traverse 
 
 a^misdtue" 8 their designs, and to excite domestic disturbances in their 
 
 vou; people 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 Caesar 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 -^ * s an evident consequence of the liberty and independ- 
 nation has ence of nations, that all have a right to be governed as they 
 a right to think proper, and that no state has the smallest right to 
 re m interfere in the government of another. Of all the rights 
 menfofan- * na * can belong to a nation, sovereignty is, doubtless, the 
 other state, most precious, and that which other nations ought the most 
 scrupulously to respect, if they would not do her an in- 
 jury. (105) 
 
 The sovereign is he to whom the nation has intrusted the 
 
 (105) Nor has a subject of one state state assist a revolted colony, it is just 
 
 a right to enter into any contract with, ground of war on the part of the parent 
 
 or to assist the revolted colony of an- state. Thompson v. Powles, 2 Simon's 
 
 other before the same has been for- Rep. 194; Taylor v. Barclay, id. 213. 
 
 mally recognised as an independent Ante, p. 141, note 95. 
 state by its own government ; and if a
 
 OF THE RIGHT TO SECURITY, ETC. 155 
 
 empire and the care of the government : she has invested him BOOK n. 
 with her rights ; she alone is directly interested in the manner CHAP, iv. 
 in which the conductor she has chosen makes use of his power. 55. One 
 It does not, then, belong to any foreign power to take cog- sovereign 
 nisance of the administration of that sovereign, to set himself cannotmake 
 up for a judge of his conduct, and to oblige him to alter it. jjj^o^ 
 If he loads his subjects with taxes, and if he treats them with conduct of 
 severity, the nation alone is concerned in the business ; and another, 
 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 ami- 
 cable representations may be made to him. The Spaniards 
 violated all rules when they set themselves up as judges of 
 the Inca Athualpa. If that prince had violated the law of 
 nations with respect to them, they would have had a right to [ 156 ] 
 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.* 
 
 But, if the prince, by violating the fundamental laws, gives 55. HOW 
 his subjects a legal right to resist him, if tyranny, becom- far lawful to 
 ing insupportable, obliges the nation to rise in their own de- i nter f ere in 
 fence, every foreign power has a right to succour an op- ^ e ^era a 
 pressed people who implore their assistance. The English S0 vereign 
 justly complained of James II. The nobility and the most and his sub- 
 distinguished patriots having determined to check him in theJ ects * 
 prosecution of his schemes, which manifestly tended to over- 
 throw 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 liber- 
 ties. 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 ima- 
 gine that he is acting in support of the better cause. It fol- 
 
 Garcillasso de la Vega.
 
 156 OF THE RIGHT TO SECURITY, ETC. 
 
 BOOK ii. lows, then, in virtue of the voluntary law of nations (see 
 CHAP, iv. 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 subjects 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. 
 
 [ 157 ] 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 Antaeas, a 
 Busiris, and a Diomede. 
 
 57. Right After having established the position that foreign nations 
 of opposing have no right to interfere in the government of an independ- 
 the interfer- t state ft j s not diffi cu it to prove that the latter has a right 
 enceoffor- . . _ L, , , ,. 
 
 eign powers * oppose such interference. To govern herself according to 
 in the affairs her own pleasure, is a necessary part of her independence, 
 of govern- A sovereign state cannot be constrained in this respect, except 
 . ment * 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 sove- 
 reign has a right to treat those as enemies who attempt to 
 interfere in his domestic affairs otherwise than by their good 
 offices. 
 
 58. The Religion is in every sense an object of great importance to 
 same rights a na tion, and one of the most interesting subjects on which 
 g overnmen * can De employed. An independent people 
 are accountable for their religion to God alone; in this par- 
 ticular, as in every other, they have a right to regulate their 
 conduct according to the dictates of their own conscience, 
 and to prevent all foreign interference in an affair of so deli- 
 cate a nature.* The custom, long kept up in Christendom, 
 
 When, however, we see a party the religion we profess, and :u neigh - 
 inflamed with deadly hatred against bouring prince persecuting in oonse- 
 240
 
 OF THE RIGHT TO SECURITY, ETC. 157 
 
 of causing all the affairs of religion to be decided and regu- BOOK n. 
 lated in a general council, could only have been introduced CHAP, iv. 
 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 inde- 
 pendent 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 [ 158 ] 
 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.* But even 
 Catholic sovereigns have endeavoured to restrain that autho- 
 rity 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 
 here again, only to draw just consequences from them with 
 respect to the conduct which nations ought to observe towards 
 each other. 
 
 It is, then, certain that we cannot, in opposition to the will 59. Nona- 
 of a nation, interfere in her religious concerns, without vio- tlon can b 
 lating her rights, and doing her an injury. Much less are ^freTect 
 we allowed to employ force of arms to oblige her to receive to religion. 
 a doctrine and a worship which we consider as divine. What 
 right have men to set themselves up as the defenders and pro- 
 tectors 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 con- 
 verts. The monstrous maxim of extending religion by the 
 sword, is a subversion of the rights of mankind, and the most 
 
 quence the professors of that religion, nature requires that I should antici- 
 it is lawful for us to give assistance to pate and prevent the evil which may 
 the sufferers, as it was well remarked thence result to myself." Le Vassor, 
 by James I. of England to Bouillon History of Louis XIII. 
 the ambassador of Mary de Medici, * See above, 46, and Bodinus's 
 queen-regent of France," When my Republic, book i. c. ix, with his quo- 
 neighbours are attacked in a quarrel tations, p. m. 139. 
 in which I am interested, the law of 
 
 31 V 241
 
 158 OF THE RIGHT TO SECURITY, ETC. 
 
 BOOK n. terrible scourge of nations. Every madman will fancy he is 
 CHAP, iv. fighting in the cause of God, and every aspiring spirit will 
 use that pretext as a cloak for his ambition. While Char- 
 lemagne 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. 
 
 60. Offi- B u t it is an office of humanity to labour, by mild and law- 
 manit in ^ means > * persuade a nation to receive a religion which 
 these mat- we believe to be the only one that is true and salutary. Mis- 
 ters, sionaries may be sent to instruct the people ; and this care is 
 Missiona- altogether comformable to the attention which every nation 
 ries. 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 doc- 
 trine 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 sove- 
 reign 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 doc- 
 [ 159 ] trine ? In a former part of the work (Book I. 128136), 
 we have established the rights of the nation and those of the 
 citizens; and thither we refer for an answer to this question. 
 61. Cir- This is a very delicate subject; and we cannot authorize 
 cumspection an inconsiderate zeal for malting proselytes, without endan- 
 gering 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 accom- 
 plishing the most meritorious work. For, it is certainly per- 
 forming a very bad office to a nation, and doing her an essen- 
 tial injury, to spread a false and dangerous religion among 
 the inhabitants. Now, there is no person who does not be- 
 lieve his own religion to be the only true and safe one. Re- 
 commend, kindle in all hearts, the ardent zeal of the missiona- 
 ries, 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 lukewarmness, 
 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 
 
 242
 
 OF THE RIGHT TO SECURITY, ETC. 159 
 
 -where it is received, and of rendering it useful to the man- BOOK u. 
 ners of the people and to the state : and, without forestalling CHAP. IT. 
 the dispositions of Providence, it can find sufficient employ- 
 ment 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 Mo- 
 hammedan 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 suffi- 
 cient charge on each of us, to be responsible for his own con- 
 science. 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. 
 
 When a religion is persecuted in one country, foreign na- 62. What 
 tions who profess it may intercede for their brethren : but a sovereign 
 this is all they can lawfully do, unless the persecution be car- ^ u ^ J- n 
 ried to an intolerable excess : then, indeed, it becomes a case tnose wno 
 of manifest tyranny, in opposition to which all nations are profess his 
 allowed to assist an unhappy people ( 56). A regard to religion in 
 their own safety may also authorize them to undertake the g t "* her 
 defence of the persecuted sufferers. A king of France re- 
 plied to the ambassadors who solicited him to suffer his sub- 
 jects 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 [ 160 ] 
 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 im- 
 plicitly receive their doctrines. 
 
 248
 
 160 OE THE OBSERVANCE OF JUSTICE BETWEEN NATIONS. 
 
 BOOK II. 
 CHAP. V. 
 
 CHAP. V. 
 
 OF THE OBSERVANCE OF JUSTICE BETWEEN NATIONS. 
 
 63. lye- JUSTICE ' is the basis of all society, the sure bond of all 
 cesslt y ftlie commerce. Human society, far from being an intercourse 
 of^u&tLcein ^ assistance and good offices, would be no longer any thing 
 human so- but a vast scene of robbery, if no respect were paid to this 
 ciety. 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 indispen- 
 sably binding on nations (Prelim. 5), but even still more 
 sacred with respect to them, from the importance of its con- 
 sequences. 
 
 64. Obli- All nations are therefore under a strict obligation to culti- 
 gatkm of all V ate justice towards each other, to observe it scrupulously, 
 cultivate anc ^ care f u ^y to abstain from every thing that may violate it. 
 and observe Each ought to render to the others what belongs to them, to 
 justice. respect their rights, and to leave them in the peaceable en- 
 joyment of them.* 
 
 65. Right From this indispensable obligation which nature imposes 
 
 of refusing on nations, as well as from those obligations which each na- 
 
 in'ustice 1 10 tion owes to nerself 5 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 
 
 [ 161 ] ( 49). 
 
 66. This This right is a perfect one, that is to say, it is accompa- 
 right is a n i e( j w ith the right of using force in order to assert it. In 
 pe one. ya j n wou ] ( j na t u re give us a right to refuse submitting to in- 
 justice, in vain would she oblige others to be just in their 
 dealings with us, if we could not lawfully make use of force, 
 
 * Might not this duty be extended be executed on requisition made by those 
 to the execution of sentences passed in parliaments. But I do not know that 
 other countries according to the neces- the tribunals of this country act in the 
 sary and usual forms ? On this subject same manner with respect to sentences 
 M. Van Bouningin wrote as follows to passed in Holland ; and, if they do not, 
 M. De Witt, Oct. 15, 1666 : By what an agreement might be made, that 
 the courts of Holland have decreed in the sentences passed on either side against 
 affair of one Koningh, of Rotterdam, I subjects of the other state shall only 
 see they suppose that ever,y judgment take effect on such property as the con- 
 pronounced by the parliaments of demned party is found to possess in 
 France against the inhabitants of Hoi- the state where the sentence has been 
 land injudicio contradictor io, ought to given." 
 244
 
 CONCERN OF A NATION IN THE ACTIONS OF HER CITIZENS. 161 
 
 when they refused to discharge this duty. The just would BOOK n. 
 lie at the mercy of avarice and injustice, and all their rights CHAP - Y - 
 would soon become useless. 
 
 From the foregoing right arise, as distinct branches, first, 67. It pro- 
 the right of a just defence, which belongs to every nation, ducesl.The 
 or the right of making use of force against whoever attacks jgj of 
 her and her rights. This is the foundation of defensive war. 
 
 Secondly, the right to obtain justice by force, if we cannot 68 - 2 - The 
 obtain it otherwise, or to pursue our right by force of arms. ^J^!J| in8 
 This is the foundation of offensive war. justice. 
 
 An intentional act of injustice is undoubtedly an injury. 69. The 
 We have, then, a right to punish it, as we have shown above, right of pun- 
 in speaking of injuries in general ( 52). The right of refus- ^ ce ng mjus " 
 ing to suffer injustice is a branch of the right to security. 
 
 Let us apply to the unjust what we have said above ( 53) 70. Right 
 of a mischievous nation. If there were a people who made / ^ na ; 
 open profession of trampling justice under foot, who ^e- ^" s t ^|^ nst 
 spised and violated the rights of others whenever they found op enly de- 
 an opportunity, the interest of human society would author- spises jus- 
 ize all the other nations to form a confederacy in order to hum- tice - 
 ble and chastise the delinquents. We do not here forget the 
 maxim established in our Preliminaries, that it does not be- 
 long 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 max- 
 ims, 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 sup- 
 port an unjust pretension, is only doing an injury to the party 
 whose interests are affected by that pretension ; but, to de- 
 spise justice in general, is doing an injury to all nations. 
 
 CHAP. VI. 
 
 OF THE CONCERN A NATION MAY HAVE IN THE ACTIONS OF CHAP - YI -_ 
 HER CITIZENS. 
 
 WE have seen in the preceding chapters what are the com- 71. The 
 mon duties of nations towards each other, how they ought sovereign 
 mutually to respect each other, and to abstain from all injury "jj JJJ " 
 and all offence, and how justice and equity ought to reign injuries of 
 between them in their whole conduct. But hitherto we have the state, 
 only considered the actions of the body of the nation, of the *"*& to P r - 
 
 V2 245
 
 161 CONCERN OF A NATION 
 
 BOOK ii- state, of the sovereign. Private persons who are memhers 
 CHAP. YI. O f one nation, may offend and ill-treat the citizens of another, 
 tect the citi- and may injure a foreign sovereign : it remains for us to 
 zens. examine what share a state may have in the actions of her 
 
 L 1"2 ] citizens, and what are the rights and obligations of sovereigns 
 in this respect. 
 
 Whoever offends the state, v 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 repara- 
 tion ; since otherwise the citizen would not obtain the great 
 end of the civil association, which is, safety. 
 
 72. He But, on the other hand, the nation or the sovereign ought 
 ought not to not to suffer the citizens to do an injury to the subjects of an- 
 
 suSTto other state ' much less to offend that state itself : and this > not 
 offend other on ty because no sovereign ought to permit those who are 
 nations or under his command to violate the precepts of the law of na- 
 their citi- ture, which forbids all injuries, but also because nations 
 zens. 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 sove- 
 reign, 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 However, as it is impossible for the best regulated state, 
 acts of indi- or f or the most vigilant and absolute sovereign, to model at 
 ^ t u t a o ls b ^ re his pleasure all the actions of his subjects, and to confine 
 imputed to them on every occasion to the most exact obedience, it would 
 the nation, 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 But, if a nation or its chief approves and ratifies the act 
 it approves of the individual, it then becomes a public concern ; and the 
 or ratifies i n j ure( j party is to consider the nation as the real author of 
 the injury, of which the citizen was perhaps only the instru- 
 75. Con- ment. 
 
 obstrted'b If the offended state has in her P ower tne individual who 
 ^^offended nas done the injury, she may without scruple bring him to 
 party. justice and punish him. If he has escaped and returned to
 
 IN THE ACTIONS OP HER CITIZENS. 162 
 
 his own country, she ought to apply to his sovereign to have BOOK n. 
 justice done in the case. CHAr - - 
 
 And, since the latter ought not to suffer his subjects to [ 163 ] 
 molest the subjects of other states, or to do them an injury, 76. Duty 
 much less to give open, audacious offence to foreign powers, of the a g- 
 he ought to compel the transgressor to make reparation for i es f or ' s s - 
 the damage or injury, if possible, or to inflict on him an ex- 
 emplary punishment ; or, finally, according the nature and cir- 
 cumstances of the case, to deliver him up to the offended state, 
 to be there brought to justice. This is pretty generally ob- 
 served with respect to great crimes, which are equally con- 
 trary to the laws and safety of all nations. Assassins, incen- 
 diaries, 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 friend- 
 ship and good neighbourhood. Even in cases of ordinary 
 trangressions, which are only subjects of civil prosecution, 
 either with a view to the recovery of damages, or the inflic- 
 tion of a slight civil punishment, the subjects of two neigh- 
 bouring 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 Letters 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 Let- 
 ters 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 pre- 
 serve 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 repe- 
 tition 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. 
 
 The sovereign who refuses to cause reparation to be made 77. If he 
 for the damage done by his subject, or to punish the offender, refuses jus- 
 or, finally, to deliver _ him up, renders himself in some mea- ^^^ 
 sure an accomplice in the injury, and becomes responsible party jn t hr 
 for it. But, if he delivers up either the property of the fault and 
 offender, as an indemnification, in cases that will admit of offence, 
 pecuniary compensation or his person, in order that he may 
 
 247
 
 163 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 BOOK ii. suffer the punishment due to his crime, the offended party 
 CHAP, vi. J^ no f ur ther demand on him. King Demetrius, having de- 
 [ 164 ] livered 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.* If this was really the 
 case, and if the king had no share in the murder of the Ro- 
 man ambassador, the conduct v of the senate was highly unjust, 
 and only worthy of men who sought but a pretext to cover 
 their ambitious enterprises. 
 
 other casein Finally, there is another case where the nation in general 
 which the ' IS gu^ty of the crimes of its members. That is, when, by 
 nation is its manners, and by the maxims of its government, it accus- 
 guilty of the toms and authorizes its citizens indiscriminately to plunder 
 thTcitizens anc ^ ma ^ rea * ; foreigners, to make inroads into the neighbour- 
 ' ing 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 confe- 
 deracy against the states of Barbary, in order to destroy 
 those haunts of pirates, Avith 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 re- 
 spect those who are most able to chastise them ; and the na- 
 tions 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. 
 
 CHAP. VII. 
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 79. Gene- \\T E have explained, in Chap. XVIII. Book I., how a na- 
 f ^ on ta ^ es P ossess ^ on ^ a country, and at the same time gains 
 ' possession of the domain and government therof. That coun- 
 try, 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 do- 
 main is necessarily a peculiar and exclusive right ; for, if I 
 
 * See Polybius, quoted by Barbey- (106) It was on this ground that the 
 rac, in his notes on Grotius, book iii. French nation so recently took posses- 
 chap, xxiv. vii. sion of Algiers.- C. 
 248
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 164 
 
 have a full right to dispose of a thing as I please, it thence BOOK n - 
 follows that others have no right to it at all, since, if they OHAP ' Y "' 
 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 na- 
 tion is full and absolute, since there exists no authority upon 
 earth "by which it can be limited : it therefore excludes all 
 right on the part of foreigners. And, as the rights of a nation 
 ought to be respected by all others ( 64), none can form any [ 165 ] 
 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. 
 
 The domiin of the nation extends to every thing she pos- so. What 
 sesses by a just title : it comprehends her ancient and original j^JJfj^ 
 possessions, and all her acquisitions made by means which are ^"domain 
 just in themselves, or admitted as such among nations, con- O f a nation, 
 cessions, 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. 
 
 Even the property of the individuals is, in the aggregate, 81. The 
 to be considered as the property of the nation, with respect property of 
 to other states. It, in some sort, really belongs to her, from [ g ^g 1 " 8 
 the right she has over the property of her citizens, because per ty of the 
 it constitutes a part of the sum total of her riches, and aug- nation, with 
 nients her power. She is interested in that property by her respect to 
 obligation to protect all her members. In short, it cannot be ^"j 
 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 
 so 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. 
 
 By an immediate consequence of this principle, if one na- 82. A con- 
 tion has a right to any part of the property of another, she sequence of 
 has an indiscriminate right to the property of the citizens of ^ pnncl " 
 the latter nation until the debt be discharged. This maxim p e 
 is of great use, as shall hereafter be shown. 8 3. Con- 
 
 The general domain of the nation over the lands she inhabits nection of 
 is naturally connected with the empire ; for, in establishing the Domain 
 herself in a vacant country, the nation certainly does not in- j^^JJ" 
 tend to possess it in subjection to any other power: and, can t h e sove . 
 we suppose an independent nation not vested with the absolute reigmv. 
 
 32 249
 
 165 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 BOOK ii. command in her domestic concerns ? Thus, we have already 
 CHAP. YII. observed (Book I, 205), that, in taking possession cf 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 in in- 
 dependent nation. How could she govern herself at h^r own 
 pleasure in the country she inhabits, if she cannot truly and 
 absolutely dispose of it ? A^id 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 
 [ 166 ] the eminent domain which constitutes a part of the sovereignty 
 (Book I, 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 be- 
 longing to a nation in places that are not under her juris- 
 diction. Thus, many sovereigns have fiefs, and other pos- 
 sessions, in the territories of another prince : in these cases 
 they possess them in the manner of private individuals. 
 84. Juris- The sovereignty united to the domain establishes the ju- 
 diction. risdiction 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 de- 
 finitive 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 de- 
 fendants cannot hear their complaints. To undertake to ex- 
 amine 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 fo- 
 reigners 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.* 
 
 * See the report made to the King Murray. It is an excellent piece on 
 of Great Britain by Sir George Lee, the law of nations. 
 Dr. Paul, Sir Dudley Ryder, and Mr. 
 250
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 166 
 
 What is here said has no relation to the merits of that par- BOOK H. 
 ticular cause, since they must depend on facts. CHAP, yn. 
 
 In consequence of these rights of jurisdiction, the decisions 85. Effects 
 made by the judge of the place within the extent of his power f tlie J uns ' 
 ought to be respected, and to take effect even in foreign coun- f< ^ e -^ m 
 tries. For instance, it belongs to the domestic judge to nomi- countries, 
 nate tutors and guardians for minors and idiots. The law of (107) 
 
 (107) This principle appears to be now 
 settled by the law and practice of na- 
 tions; but, nevertheless, subject to cer- 
 tain 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 re- 
 spected, than at any other period of his- 
 tory. 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 Flail 
 Oyen, 1 Rob. Rep. 115). And, in order 
 to constitute a legal prize-court to pro- 
 nounce a binding sentence, by the law 
 of nations, certain requisites are es- 
 sential. 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 Diet, of Trade and 
 Commerce, article Silesia, 4th ed. ; and 
 1 Col. Jurid. 133; and see Undo 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 be- 
 longing to the belligerent country. (See 
 id., and Havelock v. Rockwood, Atche- 
 son's Rep. 7 & 8 ; 8 Term Rep. 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 innu- 
 merable 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. Rockicood, 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. Rockivood, 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 Har- 
 rison's Index, pp. 687 to 689. 
 
 By the marine law of England, as 
 practised in the High Court of Admi- 
 ralty, 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 con- 
 demnation (2 Burr. 696 ; Undo v. Rod- 
 ney 4- 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 postli- 
 minii is extended, and continues for 
 ever, 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 recap- 
 tured from the enemy, it is to be re- 
 stored 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 fo- 
 reign 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 Naoelli v. Ross, 2 Bam. & Adolph. 
 765; and see Frankland v. M'Gusty, 
 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. Cassilis, 2 Swanst 325) ; fCalhoun 
 
 251
 
 166 
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 BOOK n. nations, which has an eye to the common advantage and the 
 CHAP. TII. g 00( j harmony of nations, requires, therefore, that such nomi- 
 nation of a tutor or guardian be valid, and acknowledged in 
 all countries where the pupil may have any concerns. Use 
 
 v. Fitzsimons, 1 Bin. Rep. 293; Cal- 
 breath v. Gracy, 1 Wash. C. C. Rep. 
 219.} And it was held, that a decree^ 
 of the sale of a ship made in an Ame- 
 rican 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 sen- 
 tence 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 com- 
 petent jurisdiction directly upon a point, 
 is, as a plea, a bar, or, as evidence, con- 
 clusive, between the same parties upon 
 the same matter directly in question 
 in another court. (See Duchess of King- 
 ston's case, 20 Howcll's State Trials, 
 538 ; and see Bui. N. Pri. 244 ; Phillips 
 v. Hunter, 2 Hen. Bla. 402, per Eyre, 
 C. J. ; and see, as to that point, 1 Phil- 
 lipps on Evid. part ii. c. 2 and 3, {vol. 
 4, Am. ed. 1839, New York, pages 
 856 to 915} ; and Starkie on Evid. 
 part ii. 67, 68 ; Frankland \.M'Gus!y, 
 I 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 judgment of a court 
 of record in England ; and, therefore, 
 if a man recover a judgment or sen- 
 tence 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 will run 
 upon it (Dupleix v. De Jioven, 2 Vem. 
 540) : and the sentence of a court of 
 summary jurisdiction in France can- 
 not be pleaded to a bill in Chancery in 
 England for the same matter (Gage v. 
 Bulkeky, 3 Atk. 215); and it should 
 seem, that even a recovery of a judg- 
 ment 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 
 252 
 
 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, there- 
 fore, 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 ori' 
 ginal defendant to show that the judg- 
 ment had been improperly obtained. 
 (Frankland v. M'Gusty 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 with- 
 out his having had any opportunity of 
 knowing of the proceeding, and defend- 
 ing 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. Rosf, 2 Barn. & Adol. 757) ; 
 or, even if either of those objections be 
 shown by extrinsic evidence (Frankland 
 v. M'Gusty, Knapp's Rep. 274 to 310; 
 semble, overruling the contrary decision 
 in Martin v. Nicolls, 3 Simon's Rep. 
 458, 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 cancel-
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 166 
 
 was made of this maxim in the year 1672, even with respect BOOK n. 
 to a sovereign. The abbe D' Orleans, sovereign prince of CHAP, vii. 
 Neufchatel, in Switzerland, being incapable of managing his [ 167 ] 
 own affairs, the king of France appointed, as his guardian, 
 his mother, the duchess-dowager of Longueville. The duch- 
 ess of Nemours, sister to that prince, laid claim to the guar- 
 dianship 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 
 
 lation of the acceptance of a bill by mis- 
 take, and had, on that ground, and con- 
 trary 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 de- 
 cree. (Novflli v. Rossi, 2 Barn. & Adolp. 
 757.) And, upon appeal to the Privy- 
 Council, a decree of the court of jus- 
 tice of Demerara, for a sum of money had left property there, 
 due upon three foreign judgments in Forrest.) 
 St. Vincent's, was reversed, on the 
 ground that those judgments had been 
 improperly obtained. (Frankland v. 
 M< Gusty, 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 ; Frank- 
 land v. M'Gusty, Knapp's Rep. 304.) 
 
 the Attorney-General should commu- 
 nicate with the absent party ; it was 
 held, that such law was not so con- 
 trary to national justice as to render 
 void a judgment obtained against a 
 party who had resided within the juris- 
 diction of the court at the time when 
 the cause of action accrued, but had 
 withdrawn himself before the proceed- 
 ings 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 
 (Douglas v. 
 
 In England, the judgment of an 
 English court of record, however in- 
 ferior, 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 un- 
 fairly obtained (2 Burr. 1009; 2 Bing. 
 216). But the judgment of an infe- 
 rior court may be controverted, when 
 it appears that the proceedings have 
 been bad in law, as, where a summons 
 
 But, to render a foreign judgment void, and attachment, which ought to have 
 on the ground that it is contrary to the been successive proceedings, in default 
 law of the country where it was given, 
 or to reason and justice, it must be 
 
 shown clearly and unequivocally to be 
 
 of appearance to the former, were is- 
 sued against the defendant at the same 
 time, and returnable at the same time, 
 
 so. (Becquet v. McCarthy, 3 Barn. & and to which the defendant never ap- 
 
 Adolp. 951.) But, if the error do not 
 appear upon the face of the proceeding 
 and the party complaining of the judg- 
 
 peared (3 Barn. & Cres. 772 ; 5 Dowl. 
 & Ryl. 719, S. C.) ; and it seems that 
 the judgment of an inferior court may 
 
 ment himself was misled, and sub- be avoided, by proof that the cause of 
 mitted to the decision instead of pro- action did not arise within the jurisdio 
 
 testing against it, he is too late to com- 
 plain upon an appeal against it. (Mac- 
 allislerv. Macallister, 4 Wilson & Shaw, 
 
 tion of the court. (Willes, 36 n.; 2 Bing. 
 
 213.) 
 
 With respect to the proof of foreign 
 142, 147.) And where the law of a judgments and decrees in England, it has 
 British colony required, that, on a suit been decided, that an exemplification 
 instituted against an absent party, the of a sentence in Holland under the 
 process should be served upon the common seal of the States, may be read 
 King's Attorney-General in the colony, in evidence in a suit in Chancery. 
 
 but it was not expressly provided that Anon. 9 Mod. 56. 
 W 
 
 253
 
 167 
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 BOOK n. circumstance of her having been nominated guardian by the 
 CHAP, vii. domestic judge.* 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 Longue- 
 ville became firm and lawful at Neufchatel. 
 
 In the same manner the validity of a testament, (108) as 
 
 Wills and 
 testaments. 
 
 * 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, inter- 
 preted, and given effect to, according to 
 the law of the country where it was 
 made and where the testator had his domi- 
 cile, and every court in ever)' 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 native of Scot- 
 land, domiciled in India, but who pos- 
 sessed heritable bonds in Scotland, as 
 well as personal property there, and, 
 also, in India, having executed a will in 
 India, ineffectual to convey Scotch heri- 
 tage; 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 pro- 
 perty, as legatee under the will it was 
 held in the House of Lords, in Eng- 
 land (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 it 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 sub- 
 ject 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 inter- 
 preted according to the law of the coun- 
 try 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 expres- 
 sions which are made use of in a will, 
 and the language of a will, have fre- 
 quently reference to those rules of con- 
 struction ; and it would be productive, 
 therefore, of the most mischievous con- 
 254 
 
 sequences, and in many instances de- 
 feat the intention of the testator, if 
 those rules were to be altogether disre- 
 garded, 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 in- 
 terpret the will according to their own 
 rules of construction. That would also 
 be productive of another inconvenience, 
 namely, that the will might have a con- 
 struction 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 pro- 
 ceeding, 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, dotnidledin England, 
 and having personal property only there, 
 and who went for a short time to Scot- 
 land, 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, (Jln- 
 struther v. Chalmers, 2 Simons, 1). It 
 should seem, therefore, that in some 
 cases, as respects personalty, the domi- 
 cile 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, Lushington 
 v. Sewell, 1 Simons, 435, S. P.), though 
 a devise of a farm in England would 
 not pass farming utensils. (Stewart v.
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 167 
 
 to its form, can only be decided by the domestic judge, whose BOOK n 
 sentence delivered in form ought to be everywhere acknow- CHAP - YI1 ' 
 ledged. 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 abbs' D' Orleans above mentioned having 
 appointed the prince of Conti his universal legatee, the 
 three estates of Neufchatel, without waiting till the parlia- 
 ment of Paris should pronounce their decision on the question 
 of two contradictory wills made by the abbe* D'Orle'ans, 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. 
 
 As every thing included in the country belongs to the 86. Desert 
 nation, and, as none but the nation, or the person on whom a . nd u " cul - 
 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 pos- 
 session 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 ex- 
 tent 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,"* giving those proud conquerors to under- 
 stand that they had no right to reserve and appropriate to 
 themselves a country which they left desert. The Romans [ 168 ] 
 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. 
 
 When there is not this singular circumstance, it is equally 87. Duty 
 agreeable to the dictates of huma,nity, and to the particular 
 
 respect. 
 
 Maryat, 11 Ves.657.) So, if a Dutch- (Anon. 9 Mod. 66, and see Bowaman 
 man be possessed of real estate in Hoi- v. Reeve, Pre. Ch. 577.) A will of 
 land, and personal estate in England, property entirely abroad may be proved 
 and devise his real estate to A., and there. (Jaunay v. Sealey, 1 Vern. 397.) 
 his personal to B., the personal shall * Sicut coelum diis, ita terras generi 
 be first applied to pay debts in Hoi- mortalium datas; quseque vacuse, eas 
 land, though real estate is liable there, publicas esse. TACIT. 
 
 255
 
 168 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 
 
 K 
 
 advantage of the state, to give those desert tracts to foreign- 
 _CHAP._VII._ erg W k 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, tne king of Prussia endeavours to 
 re-people his states laid waste by the calamities of former wars. 
 88. Right The nation that possesses a country is at liberty to leave 
 >f P h- SeSS " * n *^ e P r i m iti ve state of communion certain things that have 
 that havTno as J e * no Owner 5 or t appropriate to herself the right of 
 owner. 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 terri- 
 tories of a state, to appropriate to himself a treasure found 
 there, &c. 
 
 g 89. Rights There exists no reason why a nation, or a sovereign, if au- 
 granted to thorized by the laws, may not grant various privileges in their 
 another na- 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 possessions. 
 
 g 90. It is Whoever agrees that robbery is a crime, and that we are 
 
 Webfdrive not a ^ owe( ^ to ta ^ e fa^le possession of our neighbour's 
 
 a nation l out.P r P er ty> w ^ acknowledge, without any other proof, that no 
 
 of a country nation has a right to expel another people from the country 
 
 which it in- they inhabit, in order to settle in'it herself. Notwithstanding 
 
 habits, f^g extreme inequality of climates and soils, every people 
 
 ought to be contented with that which has fallen to their share. 
 
 [ 169 ] Will the conductors of nations despise a rule that constitutes 
 
 all their safety in civil society ? Let this sacred rule be en- 
 
 tirely 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 
 
 256
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 169 
 
 lesson from a conqueror of superior abilities to themselves, BOOK n. 
 and who paid still less regard to the laws of justice. Csesar _ HAP- Y "' 
 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. 
 
 There are conquerors, who, aspiring after nothing more g 91, nor to 
 than the extension of the boundaries of their dominions, with- extend by 
 out expelling the inhabitants from a country, content them- violence the 
 
 i i. i j.i. i ii-i. 1.1. bounds of 
 
 selves with subduing them ; a violence less barbarous, but empire 
 not less unjust : while they spare the property of individuals, 
 they seize all the rights of the nation, and of the sovereign. 
 
 Since the least encroachment on the territory of another 92. The 
 is an act of injustice, in order to avoid the commission of limits of 
 any such act, and to prevent every subject of discord, every terr ' tone * 
 occasion of quarrel, the limits of territories ought to be marked ^fefum- 
 out with clearness and precision. If those who drew up the settled, 
 treaty of Utrecht had bestowed on so important a subject all 
 the attention it deserved, we should not see France and Eng- 
 land 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 obscu- 
 rity, 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 ? 
 
 We should not only refrain from usurping the territory of g 93. Viola- 
 others ; we should also respect, and abstain from every act tion of ter - 
 contrary to the rights of the sovereign : for, a foreign nation nior ?- 
 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 gene- 
 rally acknowledged as an injury that ought to be vigorously 
 repelled by every state that would not suffer itself to be op- 
 pressed. We shall make use of this principle in speaking of 
 war, which gives occasion for many questions on the rights 
 of territory. 
 
 The sovereign may forbid the entrance of his territory 3 94 . Pro . 
 
 hibition to 
 
 (109) See further as to the subject A 84, 85; Marten's Law of Nations, enter the 
 of this section, 1 Chit. Com. Law, 73 153. territory. 
 
 33 w2 257 (109)
 
 170 EFFECTS OF THE DOMAIN BETWEEN NATION8. 
 
 BOOK n. either to foreigners in general or in particular cases, or to 
 CHAP. YII. cer t a i n persons or for certain particular purposes, according 
 as he may think it advantageous to the state. There is no- 
 thing 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, fear- 
 ing lest the intercourse of strangers should corrupt the man- 
 ners of the nation, and impair the maxims of a wise but sin-, 
 gular government, forbade all people entering the empire : a 
 prohibition that was not at all inconsistent with justice, pro- 
 vided 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, 
 g 95. A If at the same time two or more nations discover and take 
 country pos- possession of an island or any other desert land without an 
 sessed by Owner5 they ought to agree between themselves, and make an 
 tiJniTat'the equitable partition ; but, if they cannot agree, each will have 
 same time, the right of empire and the domain in the parts in which 
 
 they first settled. 
 
 96. A An independent individual, whether he has been driven 
 country pos- from his country, or has legally quitted it of his own accord, 
 sessed by a ma y se ttl e j n a C0 untry which he finds without an owner, and 
 there possess an independent domain. Whoever would after- 
 wards make himself master of the entire country, could not 
 do it with justice without respecting the rights and independ- 
 ence 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 hav- 
 ing 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 for- 
 tune elsewhere. 
 
 97. inde- When several independent families are settled in a country, 
 pendent fa- they possess the free domain, but without sovereignty, since 
 miiies in a they do not form a political society. Nobody can seize the 
 em pire of that country ; since this would be reducing tho&e 
 
 258
 
 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 170 
 
 families to subjection against their will ; and no man has a BOOK n. 
 right to command men who are born free, unless they volun- CHAP - - 
 tarily submit to him. 
 
 If those families have fixed settlements, the place possessed 
 by each is the peculiar property of that family : the rest of [ 171 ] 
 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 shep- 
 herds, 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 Ame- 
 rica 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, set- 
 tle 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 suit- 
 able to their manner of life, respecting which they have no 
 laws to receive from any one. In a case of pressing neces- 
 sity, I think people might, without injustice, settle in a part 
 of that country, on teaching the Arabs the means of render- 
 ing it, by the cultivation of the earth, sufficient for their own 
 wants, and those of the new inhabitants. 
 
 It may happen that a nation is contented with possessing $ 98. Pos- 
 only certain places, or appropriating to itself certain rights, session of 
 in a country that has not an owner, without being solicitous cemin 
 to take possession of the whole country. In this case, an- J r "J* C eSin 
 other nation may take possession of what the first has neg- rights, in a 
 lected ; but this cannot be done without allowing all the rights vacant 
 acquired by the first to subsist in their full and absolute inde- C0untl 7- 
 pendence. In such cases, it is proper that regulations should 
 be made^by treaty ; and this precaution is seldom neglected 
 among civilized nations. 
 
 259
 
 171 RULES WITH RESPECT TO FOREIGNERS. 
 
 BOOK II. 
 CHAP. VIII. 
 
 CHAP. VIII. 
 
 RULES WITH RESPECT TO FOREIGNERS. 
 
 99. Gene- WE have already treated^Book I. 213) of tie inhabi- 
 1 ldca of tants, or persons who reside in a country where they are not 
 the state* 10 citizens. We shall here treat only of those foreigners who 
 ought to ob- pass through or sojourn in a country, either on business, or 
 serve to- merely as travellers. The relation that subsists between them 
 wards fo- an( j ^ e g OC j[ e ty j n which they now live the objects of their 
 journey, and of their temporary residence the duties of hu- 
 manity the rights, the interest, and the safety of the state 
 which harbours them the rights of that to which they belong 
 [ 172 ] 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 dis- 
 turbed by the quarrels of individuals. 
 
 g 100. En- Since the lord of the territory may, whenever he thinks 
 tering the proper, forbid its being entered ( 94), he has, no doubt, a 
 territory, 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 pre- 
 sent themselves on the frontier. 
 
 There are states, such as China and Japan, into which all 
 foreigners are forbid to penetrate without an express permis- 
 
 (110) See more fully, Grotiua, book 2, chap. 2, p. 153; 1 Chit. Com. L. 86, 87. 
 260
 
 KULES WITH RESPECT TO FOREIGNERS. 172 
 
 sion ; but, in Europe, the access is everywhere free to every BOOK n. 
 person who is not an enemy of the state, except, in some CHAP - Tm : 
 countries, to vagabonds and outcasts. 
 
 But, even in those countries which every foreigner may 101. FO- 
 freely enter, the sovereign is supposed to allow him access reigners are 
 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 coun- 
 try, as he cannot presume that he has access upon any other 
 footing. The sovereignty is the right to command in the 
 whole country ; and the laws are not simply confined to regu- 
 lating 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. 
 
 In virtue of this submission, foreigners who commit faults g 102. and 
 are to be punished according to the laws of the country. The punishable 
 object of punishment is to cause the laws to be respected, an 
 to maintain order and safety. r 
 
 For the same reason, disputes that may arise between foreign- g 103. who 
 ers, or between a foreigner and a citizen, are to be determined is the judge 
 by the judge of the place, and according to the laws of the of their dls - 
 place. (Ill) And, as the dispute properly arises from the putes ' 
 
 (111) {In the courts of the United amity with another state, the courts of 
 States alien friends are entitled to claim the latter ought not to give effect to 
 the same protection of their rights as it. In neither case ought the accidental 
 citizens. Taylor v. Carpenter, 3 Story's removal of either of the parties into a 
 Rep. 458.} See ante, 166, in notes, as foreign country, or his prosecuting his 
 to foreign judgments. The doctrine remedy there, alter the substance of the 
 here advanced by Vattel (excepting as remedy ; and, however inconvenient 
 regards land) is contrary to the present and difficult it may be to investigate 
 French Code, and many other authors, and accurately ascertain the precise 
 Upon principle, it should seem, that if state of foreign law, still, if courts will 
 a contract or right be created in one entertain jurisdiction over such cases, 
 country, and be there by the lex loci they ought to administer the law so as 
 subjected to certain qualifications, and to give effect to the transaction pre- 
 clothed with certain privileges, it ought cisely the same as if it had been liti- 
 to be enforced if at all as against all gated in the country where created ; 
 the original parties, precisely the same for, otherwise the original expectations, 
 in a foreign country as it would be in rights, and interests of the parties would 
 that where it was created ; and this, not be given effect to ; and it would be 
 although it be a negotiable security, conceded that, more especially after a 
 and the interest therein vested in a competent local court has already de- 
 third person resident in a foreign cided upon the transaction (without any 
 country, because the latter ought, apparent injustice,) such decision ought 
 when he takes it, to inquire into the to be conclusive in all other courts and 
 circumstances and law which affected countries. 
 
 it in the place where it was made. These principles are fully acknow- 
 And (I fortiori it should seem that if a ledgod and given effect to in the pre- 
 contract or transaction were in viola- sent French Code and in their admi- 
 tion of the state regulations of a foreign nistration of the law. (See Pardessus, 
 nation where it was made, as in fraud Droit Commercial, vol. 1, p. 455, 4 id. 
 of its revenue, and such state is in 196, 205, 209 to 211, and 220 to 223, 
 
 261
 
 1T3 
 
 RULES WITH RESPECT TO FOREIGNERS. 
 
 BOOK ii. refusal of the defendant, who maintains that he is not bound 
 
 CHAP. YIII. to p er f orm wnat i s 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 
 
 titles, "Dee Conflitede Legislation relatif 
 an Commerce ;" " De V application de lois 
 estrangeres relatives & la forme des actes ;" 
 "De V interpretation des actes f aits en pays 
 estrangers ;" " De I' execution des actes 
 fails en pays estrangers.") Thus, in their 
 courts it has been considered, that, 
 if a bill of exchange be made in a fo- 
 reign 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 regies sur la validiti intrinseque 
 des conventions, sont derivees du droit 
 natural, et sont de toutes les legislations ;" 
 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 as- 
 certaining correctly the foreign law, 
 but consider that difficulty as not con- 
 stituting any sufficient grounds for re- 
 lieving their courts from the necessity 
 of giving full effect to the contract ac- 
 cording 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. (Drown v. Lacy, 1 Dowl. & 
 Byl. 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 nar- 
 rowedly 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. Dalrymplc, 
 Hagg. Rep. 54 ; Lacon v. Higgins, 1 
 Dowl. & Ryl. XL 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 bo performed, 
 and not according to the law of the 
 country into which either or all may ro- 
 262 
 
 move ; 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. Jcmino, 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. <fe 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. Eeardon, 
 Jacob's Rep. 89, 90 ; and as to foreign 
 marriages, in general, see 1 Roper on 
 Husband and Wife, 333; Lantatir v. 
 Teesdale, 8 Taunt. 830 ; Smith v. Max- 
 well, Ry. & Mood. Ni. Pri. Cas. 80; 
 1 Carr. & Payne, 271, S. C.; and see 
 Sutler 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. Free- 
 man, Ambl. 303.) And, where the de- 
 fendant gave the plaintiff, in a foreign 
 country, where both were resident, a 
 bill of exchange drawn by the defend- 
 ant 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 certifi- 
 cate 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 con- 
 tract must bo considered as made 
 abroad. (Potter v. Bromi, 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 corres- 
 ponding with the original intention of 
 the parties. (Beawes, pi. 251 ; Marius, 
 102; Poth. pi. 155; 5 Barn. & Cres. 
 443; Chitty on Bills, 191.) So, the 
 English courts, in some cases, beside? 
 giving effect to the contract itself, ac- 
 cording to the foreign law, also give 
 effect to such foreign law In some col- 
 lateral respects, acknowledging that
 
 RULES WITH RESPECT TO FOREIGNERS. 
 
 173 
 
 compel him to the performance. The Swiss have wisely made BOOK n. 
 this rule one of the articles of their alliance, in order to pre- CHAP - VI11 - 
 vent the quarrels that might arise from abuses that were for- 
 merly too frequent in relation to this subject. The defend- 
 
 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 settle- 
 ment 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 Eng- 
 land 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. riaima, 1 Barn. & Adolph. 284; 10 
 Barn. & Cress. 903; Flack v. Holm, 
 
 1 Jac. <fc Walk. 405.) So, though ac- 
 cording to the law of Holland, persons 
 jointly concerned in trade could not sue 
 as partners, they might do so in Eng- 
 land. (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, 385; 1 Younge & Jerv. 
 376; {Nashv. Tapper, 1 Caines's Rep. 
 402; Decouche v. Savetier, 3 Johns. 
 Cha. Rep. 190 ; LeRoy v. Crowninshield, 
 
 2 .Mason's Rep. 151;} aliter in France, 
 4 Partlessus, 223.) But it must be ob- 
 served, 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 Del- 
 valle 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 al- 
 lowed to carry on smuggling transac- 
 tions adverse to the interests of a neigh- 
 bouring country, provided they do not 
 prejudice our own revenue. (Holman v. 
 Johnson, Cowp. 343) -per Lord Mans- 
 field, " 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 forg- 
 ing assignats 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, ad- 
 denda ; 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 eases, 
 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 ad- 
 judicate 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 conse- 
 quence of it not being in the form re- 
 quired 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 circum- 
 stance of the bills being drawn and ac- 
 cepted by the defendant in France, and 
 of the plaintiff having received the same 
 263
 
 173 
 
 RULES WITH RESPECT TO FOREIGNERS. 
 
 3ooi n. ant's judge is the judge of the place where that defendant has 
 IAP. vim jjjg se ttled abode, or the judge of the place where the defend- 
 ant is, when any sudden difficulty arises, provided it does 
 not relate to an estate in land, or to a right annexed to such 
 
 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 other- 
 wise the contract will be construed the 
 same as an English contract ; and there- 
 fore it was held that an instrument exe- 
 cuted 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, un- 
 less there be an allegation in the bill in 
 equity, setting it forth, and that, accord- 
 ing 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 pre- 
 cedes a Scotch sequestration, all Scotch 
 personal estate is liable to the commis- 
 sion, and not to the sequestration. (Ex 
 parte Cridland, 3 Ves. & B. 100 ; when 
 otfierwise, Ex parte Geddes, 1 Glyn & 
 J. 414) 
 
 Legacy in a foreign country, and 
 coin, as sicca rupees, by a will in In- 
 dia, if paid by remittance to this coun- 
 try, 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. (Free- 
 moult v. Dedire, 1 P. Wms. 431 ; Ex 
 parte Cridland, 3 Ves. & B. 99 ; { Tal- 
 bot v. Seeman, 1 Cranch, l.| 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, 
 264 
 
 was received as evidence of the law of 
 France, upon which the Court in Eng- 
 land would act in deciding upon the 
 v validity of a marriage in France be- 
 tween British subjects. (Lacon v. Hig- 
 gins, 1 Dowl. & Ryl. Ni. Pri. Rep. 38; 
 3 Stark. 176, S. C.) And it has been 
 supposed that the same point was de- 
 cided in Sir Thomas Picton's case, where 
 the question arose as to the right of in- 
 flicting 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 affi- 
 davit of a professional person swearing 
 positively, and not by the affidavit of 
 another person not professionally ac- 
 quainted 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 experi- 
 ence, 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. 
 (Oreig 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, ho, like 
 our king, is not to recover costs Cante, 
 154, Hullet v. King of Spain, 1 Dow. 
 Rep. new ser. 177); and, if such sove- 
 reign 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
 
 RULES WITH RESPECT TO FOREIGNERS. 173 
 
 an estate. In this last case, as property of that kind is to BOOK n. 
 be held according to the laws of the country where it is situ- CHAP - Yin - 
 ated, 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. 
 
 The sovereign ought not to grant an entrance into his state \ 104. Pro- 
 for the purpose of drawing foreigners into a snare : as soon tection due 
 as he admits them, he engages to protect them as his own * g foreisil ~ 
 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. Hospi- 
 tality 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,* were universally held in ab- 
 horrence ; and Grotius justly saysf 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. 
 
 From a sense of gratitude for the protection granted to \ 105. Theu 
 him, and the other advantages he enjoys, the foreigner ought duties - 
 not to content himself with barely respecting the laws of the 
 
 a fund in court, it will be decreed that Columbian Government v. Rothschild, 1 
 the foreign sovereign shall be at liberty, Simons, 94, id. 68.) And the sovereign 
 by his ambassador, to go before the of a foreign state must either sue here 
 master and prove such debt due from in his own name or by his ambassador; 
 an intestate's estate as he might be able, and his subjects, when privately inter- 
 though not so as to prejudice any pre- ested, must sue individually in their 
 vious distribution (id. ibid, cases first names, or in their defined political 
 stated). character; and an ambassador cannot 
 
 It has been recently decided, that a sue in England as procurator general 
 
 foreign sovereign has a right to sue in for all or any of the subjects of the 
 
 the English courts in equity as well foreign sovereign. (Spanish Ambassa- 
 
 as at law. (Hullett and Others v. King dor v. Bingley, Hob. 113.) 
 
 of Spain, 1 Dow. Rep. new ser. 169, By the maritime law materially 
 
 and 2 Bligh, new ser. 31, in the House affecting the intercourse of nations with 
 
 of Lords, on appeal from Court of each other, when damage has been 
 
 Chancery.) {The Constitution of the occasioned to a ship by the equal fault 
 
 United States gives jurisdiction to the of those managing one ship as the 
 
 courts of the United States where other, as, by running foul of each other, 
 
 foreign states are parties. The King the owner of the damaged vessel is to 
 
 of Spain v. Oliver, 2 Wash. C. C. Rep. receive half the amount of the damage 
 sustained. (Hay v. Le Neve, 2 Shaw's 
 
 If a foreign state sue in chancery, Rep. 401 to 405.) 
 
 the bill must properly describe the * The Taurians. See Grotius de 
 
 plaintiff, so that he may, if thought Jure Belli et Pacis, lib. ii. cap. xx. $ xL 
 
 fit, bo served upon a cross bill. (The n. 7. 
 
 34 X 265
 
 173 KULES WITH KESPECT TO FOREIGNERS. 
 
 BOOK H. country; he ought to assist it upon occasion, and contribute 
 CHAP, vm. j. Q ^ s d e f encej ag f ar as i s 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 pi- 
 rates or robbers, against the ravages of an inundation, or the 
 [ 174 ] devastations of fire. Can he pretend to live under the pro- 
 tection 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? 
 
 g 106. To He cannot, indeed, be subject to those burdens that have 
 what bur- on iy a r elation to the quality of citizens ; but he ought to 
 are'wib'ect ^ ear ^ s snare ^ a ^ * ne tners - 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 im- 
 posed 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, 
 g 107. Fo- The citizen or the subject of a state who absents himself 
 reigners f or a time without any intention to abandon the society of 
 continue w hi cn ne ' IS a member, does not lose his privilege by his ab- 
 
 members ot ' . . -111 i 
 
 their own sence : he preserves his rights, and remains bound by the 
 nation. same obligations. Being received in a foreign country, in 
 virtue of the natural society, the communication, and com- 
 merce 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. 
 $ IDS. The The state, which ought to respect the rights of other na- 
 state has no tions, and in general those of all mankind, cannot arrogate 
 tiw^erson * nerse ^ an J power over the person of a foreigner, who, 
 ofVforeign- though he has entered her territory, has not become her sub- 
 er; (112) ject. The foreigner cannot pretend to enjoy the liberty of 
 living in the country without respecting the laws : if he vio- 
 lates 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 re- 
 
 (112) But, in ancient times, the able claim, or even a demand at law in 
 
 Chancellor had jurisdiction, by writ of nature of an account, either upon a 
 
 ne exeat, to restrain a foreigner or a contract or transaction entered into in 
 
 British subject from going abroad and the foreign country, and although by 
 
 communicating intelligence to an ene- the lex loci the foreigner could not have 
 
 my, or otherwise injurious to this state, been arrested, (Flack v. Holm, 1 Jac. <fc 
 
 And the Court of Chancery, from more W. 405 ; but see De Carriers v. Co- 
 
 to more, have assumed and established lonne, 4 Ves. 577) ; and it is now set- 
 
 a jurisdiction over foreigners in favour tied, that at law, a foreigner may be 
 
 of a private subject; so that, if a fo- arrested in this country for a foreign 
 
 reigner bo here, and be about to depart, debt, though he could not have been 
 
 he may be restrained and compelled to imprisoned in his own country. (De la 
 
 give security for satisfying any equit- Vega v. Viannn, 1 Barn. & Adolph. 284.) 
 266
 
 RULES WITH RESPECT TO FOREIGNERS. 174 
 
 quired of him as he is unwilling to perform, he may quit the BOOK n. 
 country. He is free at all times to leave it ; nor have we a CHAP - YITI - 
 right to detain him, except for a time, and for very particu- 
 lar reasons, as, for instance, an apprehension, in war time, 
 lest such foreigner, acquainted with the state of the country 
 and of the fortified places, should communicate his know- 
 ledge 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,* that a custom so contrary to the law of 
 nations was practised in his time in ^Ethiopia, and even in 
 Muscovy. This is at once a violation of the rights of indivi- 
 duals, and of those of the state to which they belong. Things 
 have been greatly changed in Russia ; a single reign that 
 of Peter the Great has placed that vast empire in the rank 
 of civilized nations. 
 
 The property of an individual does not cease to belong to ? 109. nor 
 him on account of his being in a foreign country; it still con- over Ws P r - 
 stitutes a part of the aggregate wealth of his nation ( 81). perty ' 
 Any power, therefore, which the lord of the territory might [ 175 ] 
 claim over the property of a foreigner would be equally de- 
 rogatory to the rights of the individual owner and to those 
 of the nation of which he is a member. (114) 
 
 Since the foreigner still continues to be a citizen of his ? no. Who 
 own country, and a member of his own nation ( 107), the a *^ e h . eirs 
 property he leaves at his death in a foreign country ought r a oreign " 
 naturally to devolve to those who are his heirs according to 
 the laws of the state of which he is a member. But, not- 
 withstanding 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 for- $ m. Will 
 tune in case of death, is a right resulting from property, it of 
 cannot, without injustice, be taken from a foreigner. The er ' 
 foreigner, therefore, by natural right, has the liberty of mak- 
 ing 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 solemni- 
 ties 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 
 
 (113) But see ante, 105, and note. (115) Ante, 167, and note ; and see 
 * In his Republic, book i. chap. vi. Vattel cited, Anstnilher v. Chalmer, 2 
 
 (114) But specific performance of an Sim. Rep. 4 ; but see Trotter v. Trotter, 
 agreement relating to the boundaries 3 Wils. & Shaw, 407, 414, and ante, 167, 
 of two provinces in America, may be en- in notes , and see Anon. 9 Mod. 66 ; 
 forced by bill in chancery in England, Bowaman v. Reeve, Pre. Ch. 577, ante, 
 if the parties be within the jurisdiction. 173, note. 
 
 (Penn v. Baltimore, 1 Ves. sen. 444.) 
 
 267
 
 175 RULES WITH RESPECT TO FOREIGNERS. 
 
 BOOK n. case, he will be obliged to observe the forms which they pre- 
 CHAP. YIII. scr jb e? if h e W ould validly dispose of the property he pos- 
 sesses 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 tra- 
 veller 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 im- 
 movable, 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, re- 
 maining 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 
 [ 176 ] be his next heirs, cannot deprive them of it by making his 
 will in a foreign country, while he continues a citizen of Ge- 
 neva ; 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 re- 
 spect to the goods he possesses there. Thus, an inhabitant 
 of Neufchatel, to whom entails are forbidden in his own coun- 
 try with respect to the property he possesses there, freely 
 makes an entail of the estate he possesses out of the juris- 
 diction of the country, if he dies in a place where entails are 
 allowed ; and, a foreigner making a will at Neufchatel, can- 
 not make an entail of even the movable property he possesses 
 there, unless, indeed, we may suppose that his movable pro- 
 perty is excepted by the spirit of the law. 
 
 a 112 Ea- What we have established in the three preceding sections 
 cheatkge is sufficient to show with how little justice the crown, in some
 
 RULES WITH RESPECT TO FOREIGNERS. 176 
 
 states, lays claim to the effects left there by a foreigner at BOOK n. 
 his death. This practice is founded on what is called escheat- CH 
 
 age, by which foreigners are excluded from all inheritances (or doctrine 
 in the state, either of the property of a citizen or that of an Jjj?*^"'^ 
 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.* Even after the Romans were 
 become a very polite and learned people, they could not ac- 
 custom 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 friend- 
 ship, nor hospitality, nor alliance, are not, therefore, our ene- 
 mies ; 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."f 
 We cannot suppose that so wise a people retained such inhu- 
 man laws with any other view than that of a necessary reta- 
 liation, as they could not otherwise obtain satisfaction from 
 barbarous nations, with whom they had no connection or trea- 
 ties existing. Bodinus shows,! that escheatage is derived from 
 these worthy sources ! It has been successively mitigated, or 
 even abolished, in most civilized states. The emperor Fre- 
 deric 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.% But Bodinus complains 
 that this edict is but ill executed. Why does there still re- [ 177 ] 
 main any vestige of so barbarous a law in Europe, which is 
 now so 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 Po- 
 land 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. 
 
 The right of traite foraine (called in Latin jus detractus) $ us. Th 
 is more conformable to justice and the mutual obligation of ri e^ lt 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 
 
 (116) As to alienage in general, and the same, notwithstanding a subsequent 
 
 the jealous provisions in England war Sutton v. Sutton, 1 Russ. & Myl. 
 
 against foreigners, see 1 Chitty's Com- Rep. 663. 
 
 mercial Law, 108 to 169. See excop- * De Jure Belli et Pacis, lib. ii. cap. 
 
 tions in treaty with America, and de- vi. 14. 
 
 cisions thuroon with respect to Ame- f Digest, lib. xlix. tit XT. De Cap- 
 
 ricans who were seised of lands in tivis, et Postlimin. 
 Wreat Britain, being allowed to retain J His Republic, book i. chap. vi. 
 x2 269
 
 177 RULES WITH RESPECT TO FOREIGNERS. 
 
 BOOK IT. that property is a loss to the state, she may fairly receive an 
 CHAP. TIII. equable compensation for it. 
 
 114. Im- Every state has the liberty of granting or refusing to 
 movable foreigners the power of possessing lands or other immovable 
 possessed property within her territory. (117) If she grants them that 
 by an alien, privilege, all such property possessed by aliens remains sub- 
 ject to the jurisdiction and laws of the country, and to the 
 same taxes as other property of the same kind. The author- 
 ity 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 advan- 
 tage 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 cer- 
 tain conditions annexed. 
 
 115. Mar- There exists no natural impediment to prevent foreigners 
 nages of f rom contracting marriages in the state. But, if these mar- 
 
 (117) By the municipal law of Great discovery filed to ascertain whether he 
 
 Britain, no alien can inherit or hold has purchased land. (Duplesses v. At- 
 
 real property. Thus, Doe v. Acklam, torney-General, 1 Bro. P. C. 415 ; 2 Ves. 
 
 2 Bar. A Cress. 799, establishes that 286.) 
 
 a person born in the United States, (118) The validity of a marriage 
 since 1783, when the two countries celebrated in a foreign country must 
 were separated, cannot inherit lands in be determined in an English court by 
 England ; and the same point was after- the lex loci where the marriage was 
 wards decided in Doe d.. Auchmiity v. solemnized ; and, therefore, on a plea 
 Mulcaster, 5 Barn. <t Cres. 771. To of coverture, where the parties, who 
 this rule some exemptions have been oc- were British subjects, were married in 
 casionally introduced by express treaty France, it was held, that, if the mar- 
 intended to be permanent, as regards riage would not be valid in that coun- 
 such exception, and strengthened by try, according to the municipal law 
 statute; as under the treaty of 1794, there, it would not be valid in this 
 between Great Britain and America, country. It was even further held 
 and the act 37 Geo. III. c. 97, under that a printed copy of the " Cinq Codes" 
 which American citizens who held lands of France, produced by the French 
 in Great Britain, on 28 Oct 1795, and vice-consul resident in London, pur- 
 their heirs and assigns, are at all times chased by him at a bookseller's shop 
 to be considered, so far as regards those in Paris, was properly received as evi- 
 lands, not as aliens, but as native sub- dence of the law of France upon which 
 jects of Great Britain, and this, not- the court would act ; and Abbott, C. J., 
 withstanding a subsequent war and said: The general rule certainly is, 
 the adherence of the citizen to Ame- that the written law of a foreign coun- 
 rica whilst at war with Great Britain, try must be proved by an examined 
 (Sutton v. Sutton, 1 Russ. <fe M. 663), copy thereof before it can be acted 
 and the consequent confliction of duties upon in an English court ; but, accord- 
 as regards the American citizen seised ing to my recollection, printed books 
 of such estate. But, as alienage sub- upon the subject of the law of Spain 
 jects no party to any indictment or pe- were referred to and acted upon in 
 nalty, an alien must answer a bill of argument in Sir Thomat I'icton's case, 
 270
 
 CHAP. 
 
 EIGHTS WHICH BELONG TO ALL NATIONS. 177 
 
 riao-es are found prejudicial or dangerous to a nation, she has BOOK n. 
 
 ^ 1 1 1 1 M ', ,1 r*TJAt> TnT 
 
 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 deter- 
 mine 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 mar- 
 riage a certain sum fixed by the law. 
 
 CHAP. IX. [ 178 ] 
 
 OF THE RIGHTS RETAINED BY ALL NATIONS AFTER THE CHAP, ix. 
 INTRODUCTION OF DOMAIN AND PROPERTY. 
 
 IF an obligation, as we have before observed, gives a right \ lie. What 
 to those things without which it cannot be fulfilled, every ab- are the 
 solute, necessary, and indispensable obligation produces H^j^men 
 this manner rights equally absolute, necessary, and indefea- cannot be 
 sible. Nature imposes no obligations on men without giving deprived, 
 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. 
 
 In the primitive state of communion, men had, without dis- 117. Right 
 tinction, a right to the use of every thing, as far as was ne- sti11 remain- 
 cessary to the discharge of their natural obligations. And, JUSS**" 
 as nothing could deprive them of this right, the introduction ^"teVfcom- 
 of domain and property could not take place without leaving munion. 
 to every man the necessary use of things, that is to say, 
 the use absolutely required for the fulfilment of natural obli- 
 gations. 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 pro- 
 perty, in those cases where, without this right, he would re- 
 main absolutely deprived of the necessary use of things of this 
 nature. This right is a necessary remnant of the primitive 
 state of communion. 
 
 Notwithstanding the domain of nations, therefore, each ? 118 - Ri g h * 
 nation still retains some right to what is possessed by others, retained . bv 
 in those cases where she would find herself deprived of the J"J ^ m 
 
 as evidence of the law of that country, of France. (Lacon v. Hiygini, 1 Dowl- 
 and, therefore, I shall act upon that ing & Ryland, Ni. Pri. Cases, 38; 3 
 authority, and receive the printed copy Stark. Rep. 176, S. C.; Sutler v. Free- 
 now produced as evidence of the law man, Ambl. 303.) 
 
 271
 
 178 RIGHTS WHICH BELONG TO ALL NATIONS. 
 
 BOOK n. necessary use of certain things if she were to be absolutely 
 debarred from using them by the consideration of their be- 
 
 CHAP. 
 
 property of } n g O ther people's property. We ought carefully to weigh 
 every circumstance in order to make a just application of 
 this principle. 
 
 119. Right I say the same of the right of necessity. We thus call the 
 of necessity, r ight which necessity alone gives to the performance of cer- 
 tain 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 obli- 
 gation 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 these subjects 
 discussed in treatises on the law of nature, and particularly 
 in that of Mr. Wolf. I confine myself here to a brief sum- 
 mary of those principles whose aid is necessary to us in de- 
 [ 179 ] veloping the rights of nations. 
 
 120. Right The earth was designed to feed its inhabitants ; and he who 
 of procuring j g j n wan t O f every thing is not obliged to starve because all 
 b^fbrce 113 P r P ert J is vested in others. When, therefore, a nation is 
 (fig) ' in absolute want of provisions, she may compel her neigh- 
 bours 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, if they will not sell it. Extreme necessity re- 
 vives 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 re- 
 fuses 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 bar- 
 barous inhabitants refusing him provisions, the Dutch obtained 
 them sword in hand.* 
 
 1 121. Right In the same manner, if a nation has a pressing want of the 
 of making ghips, wagons, horses, or even the personal labour of foreign- 
 thin ^ that ers ' sne ma 7 ma ^ e use ^ them, either by free consent or by 
 belong to force, provided that the proprietors be not under the same 
 others. (119) 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. 
 
 g 122. Right Let us say a few words on a more singular case, since au- 
 of carrying thors have treated of it a case in which at present, people 
 
 off women. 
 
 (119) See the doctrine of Preemption, * Bonketoe's Voyage, in the Voyage* 
 1 Chitty's Com. Law, 103, 104, 105, 446, of the Dutch to the East Indies. 
 447. 
 272
 
 EIGHTS WHICH BELOXG TO ALL NATIONS. 179 
 
 are never reduced to employ force. A nation cannot preserve BOOK n. 
 and perpetuate itself, except by propagation. A nation of CHAP ' IX " 
 men has, therefore, a right to procure women, who are abso- 
 lutely 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.* 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 oc- 
 casion, f 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 [ 180 ] 
 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 perpetu- 
 ating 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. 
 
 The right of passage is also a remnant of the primitive state ills. Right 
 of communion, in which the entire earth was common to all of passage, 
 mankind, and the passage was everywhere free to each indi-^ 120 ^ 
 vidual 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 pro- 
 perty 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 
 
 * Livy, book i. and states that the law of humanity 
 f Wolfii Jus Gent. g 341. does not seem to oblige us to grant pas- 
 (120) See fully 1 Chitty's Com. L., 84 ; sage to any other goods except such as are 
 Grotius, book ii. chap. ii. p. 153, states absolutely necessary for the purpose of 
 that a nation is bound to grant free pas- their life to whom they are thus con- 
 sage without reserve or discretion. But veyed. Puff, book iii. chap. iii. 6, 
 Puffendorf appears to agree with Vattel, p. 29. 
 
 35 273
 
 180 EIGHTS WHICH BELONG TO ALL NATIONS. 
 
 BOOK n. cogent than all his reasons to the contrary. Such is the right 
 - CHAP - 1X :_ O f necessity : this authorizes an act on your part, which on 
 other occasions would be unlawful, viz. a,n infringement of the 
 right of domain. When a real necessity obliges you to enter 
 into the territory of others, for instance, if you cannot other- 
 wise 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. 
 
 1 124. and of The right of passage through a country would in most cases 
 procuring k e useless, without that of procuring necessaries at a fair 
 necessaries, ^^ . an( j we k ave a j rea( jy Sn0 wn ( 120) that in case of ne- 
 cessity it is lawful to take provisions even by force. 
 
 1 125. Right In speaking of exile and banishment, we have observed 
 of dwelling (B 00 k I. 229231) that every man has a right to dwell 
 to f"* el 8 B 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 suffi- 
 cient for herself, she is under no obligation to allow a band 
 of foreigners to settle in it for ever : she may even dismiss 
 [ 181 ] them at once, if it be not convenient to her to grant them a 
 permanent settlement. As they have the resource of seek- 
 ing an establishment elsewhere, they cannot claim any autho- 
 rity 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 im- 
 posed on them by the master of the country, such as pay- 
 ing 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. 
 
 g 126. We have been occasionally obliged to anticipate the subject 
 
 Things of O f tne p resen t chapter, in order to follow the order of the 
 
 274
 
 EIGHTS WHICH BELONG TO ALL NATIONS. 181 
 
 different subjects that presented themselves. Thus, in speak- BOOK n. 
 ing of the open sea, we have remarked (Book I. 281) that CHAP - IX ' 
 those things, the use of which is inexhaustible, cannot fall wl ch the 
 under the domain or property of any one ; because, in that J^^g 1 " 
 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 do- 
 main, if their use is inexhaustible, they remain common with 
 respect to that use. Thus a river may be subject both to do- 
 main and empire ; but, in quality of running water, it remains 
 common, that is to say, the owner of the river cannot hin- 
 der 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 advan- 
 tage 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 de- 
 prived 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. 
 
 We call innocent use, or innocent advantage, that which 127. Right 
 may be derived from a thing without causing either loss or of innocent 
 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 inex- 
 haustible. In fact, a thing that may be useful to any one [ 182 ] 
 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 de- 
 signs 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 preju- 
 dice to the proprietor, and without any diminution of the 
 utility and advantages he is capable of deriving from his rights. 
 
 This right of innocent use is not a perfect right, like that ? 128. Na- 
 of necessity : for, it belongs to the owner to judge whether ture of this 
 the use we wish to make of a thing that belongs to him will [JJ 
 not be attended with damage or inconvenience. If others 
 should presume to decide on the occasion, and, in case of re- 
 fusal, to compel the proprietor, he would be no longer master 
 of his own property. It may frequently happen that the 
 
 275
 
 182 BIGHTS WHICH BELONG TO ALL NATIONS. 
 
 BOOK n. person who wishes to derive advantage from a thing shall 
 CHAP, ix. ^ eem t k e uge Q f - t p er f ect iy 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 injus- 
 tice; 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. 
 
 1 129. and But, when the innocence of the use is evident, and abso- 
 in cases not lutely indubitable, the refusal is an injury. For, in addition 
 doubtful. f. a manifest violation of the rights of the party by whom 
 that innocent use is required, such refusal is moreover a tes- 
 timony 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 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. 
 
 g 130. Ex- All nations do therefore still retain a general right to the 
 ercise of this innocent use of things that are under the domain of any one 
 individual nation. But, in the particular application of this 
 tions. right? it is the nation in whom the property is vested that is 
 to determine whether the use which others Avish 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 caprioe. All this 
 is founded in justice : for, it must be remembered that the 
 innocent use of things is not comprehended in the domain, or 
 [ 183 ] the exclusive property. The domain gives only the right of 
 judging, in particular cases, whether the use be really inno- 
 cent. 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 in justice. 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 exer- 
 cise of her rights. 
 
 276
 
 HOW A NATION IS TO USE HER BIGHT OP DOMAIN. 183 
 
 BOOK II. 
 CHAP. X. 
 
 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. 
 
 SINCE the law of nations treats as well of the duties of I isi. Ge- 
 states as of their rights, it is not sufficient that we have ex- n r ^ duty 
 plained, on the subject of innocent use, what all nations have ^ 
 a right to require from the proprietor : we are now to con- 
 sider what influence his duties to others ought to have on the 
 proprietor's conduct. As it belongs to him to judge whether 
 the use be really innocent, and not productive of any detri- 
 ment or inconvenience to himself, he ought not to give a re- 
 fusal 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, re- 
 quires 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 in- 
 dividual, or to a whole nation, whenever the grant of it might 
 happen to be productive of the most trifling loss or the slight- 
 est inconvenience to ourselves. In this respect, therefore, a 
 nation ought on all occasions to regulate her conduct by rea- 
 sons 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 ex- 
 penses 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 ! 
 
 The introduction of property cannot be supposed to have 132. in- 
 deprived nations of the general right of traversing the earth nocent pas- 
 for the purposes of mutual intercourse, of carrying on com- sa s e - ( m ) 
 merce 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 [ 184 ] 
 it, that he ought to refuse permission to pass. He is there- 
 fore bound to grant a passage for lawful purposes, whenever 
 he can do it without inconvenience to himself. And he can- 
 
 (121) See, in general, 1 Chitty's Com. Law, 84, 88. 
 
 Y 277
 
 184 HOW A NATION IS TO USE HER RIGHT OF DOMAIN. 
 
 BOOK n. not lawfully annex burdensome conditions to a permission 
 , CHAP " *' which he is obliged to grant, and which he cannot refuse if he 
 wishes to discharge his duty, and not abuse his right of pro- 
 perty. 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 men- 
 tioned: "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.* 
 133. Sure- But, if any apprehension of danger arise from the grant 
 re* uked b<> ^ l^erty to P ass tnrou g a 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. Pas- In like manner, a passage ought also to be granted for 
 
 sage of mer- merchandise : and, as this is in general productive of no in- 
 
 (122) 1S6 ' convenience, to refuse it without just reason is injuring a 
 
 nation, and endeavouring to deprive her of the means of car- 
 
 rying 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. 103). 
 
 g 135. Resi- In explaining the effects of domain we have said above 
 
 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 in- 
 nocent advantage, the law of nature does not give him a right 
 to refuse it : and, though other nations and other men in ge- 
 neral 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, 
 
 * Stettler, vol. i. p. 114. Tschudi, (122) Puffendorf, b. 3, ch. 3, s. 6, 
 vol. ii. pp. 27, 28. p. 29. 
 
 278
 
 HOW A NATION IS TO USE HER RIGHT OF DOMAIN. 185 
 
 without some particular and cogent reason, refuse the liberty BOOK n. 
 of residence to a foreigner who comes into the country with HAP ' x '.. 
 the hope of recovering his health, or for the sake of acquir- 
 ing 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 dissemi- 
 nate his tenets : for, that difference does not deprive him of 
 the rights of humanity. 
 
 "We have seen ( 125) how the right of necessity may in $ ise. HOW 
 certain cases authorize a people, who are driven from the we are to 
 place of their residence, to settle in the territory of another * ct t ward3 
 nation. Every state ought, doubtless, to grant to so unf or- .J^ 1 desire 
 tunate a people every aid and assistance which she can be- a perpetual 
 stow without being wanting to herself: but to grant them an residence, 
 establishment in the territories of the nation, is a very deli- 
 cate step, the consequences of which should be maturely con- 
 sidered 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 Gepidse, Vandals, Goths, and other barbarians.* 
 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 dic- 
 tate 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 pre- 
 tend to any right to establish themselves in the territory of 
 another, in order to maintain themselves there as a nation in 
 a body.f The sovereign who harbours them may therefore 
 disperse them, and distribute them into the towns and pro- 
 vinces 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 dif- 
 ference 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 munifi- 
 cence established them in his states ; by which conduct that 
 beneficent and generous prince merited the title of a wise 
 and able politician. 
 
 When, by the laws or the custom of a state, certain actions isr. Right 
 are generally permitted to foreigners, as, for instance, tra- accruing 
 
 * Vopiscus, Prob. c. xviii. Ammian. seized, that it was not just for them to 
 
 Marcell. lib. xxxi. Socrat. Hist Eccles. invade the territories of others, since 
 
 lib. iv. c. 28. they had not been able to defend their 
 
 f Caasar replied to the Tenchtheri own. Neque verum ease, qui suos fines 
 
 and Usipetos, who wanted to retain tueri non potnerint, alienos occupare. De 
 
 possession of the territories they had Bello Gallico, lib. iv. cap. vi. 
 
 279
 
 J85 HOW A NATION IS TO USE HER RIGHT OF DOMAIN. 
 
 BOOK ii. veiling freely through the country without any express per- 
 CHAP ' x- mission, marrying there, buying or selling merchandise, hunt- 
 from a ge- ~ m g^ fishing, &c., we cannot exclude any one nation from the 
 mission 01 "" benefit of the general permission, without doing her an in- 
 f 186 1 J ur y' un ^ ess there be some particular and lawful reason for 
 J 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 distinc- 
 tion, she, by the very nature of that general permission, af- 
 fords a sufficient proof that she deems them innocent with 
 respect to herself; which amounts to a declaration that fo- 
 reigners 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 in- 
 jury ( 129). Besides, to attempt without any reason to lay 
 one nation under a prohibition where an indiscriminate per- 
 mission is enjoyed by all others, is an injurious distinction, 
 since it can only proceed from hatred or contempt. If there 
 be 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 na- 
 tion ; 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 com- 
 plaint. 
 
 g 138. A As to rights of this nature granted to one or more nations 
 right grant- for particular reasons, they are conferred on them as favours, 
 ed as a fa- e jther by treaty, or through gratitude for some particular ser- 
 vice : those to whom the same rights are refused cannot con- 
 sider 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. 
 
 g 139. The Humanity is not confined to the bare grant of a permission 
 nation ought to foreign nations to make an innocent use of what belongs 
 to be cour- ^ Q ug . ft 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
 
 OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. 186 
 
 essential services to his country. Glory is the certain reward BOOK n. 
 of virtue ; and the good-will which is gained by an amia- CHAP> *' 
 ble character, is often productive of consequences highly im- 
 portant 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. 
 
 CHAP. XI. [ 187 ] 
 
 OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. (123) CHAP - " 
 
 LET us conclude what relates to domain and property with 
 an examination of a celebrated question on which the learned 
 a^ much divided. It is asked whether usueaption and pre- 
 scription can take place between independent nations and 
 states. 
 
 Usueaption is the acquisition of domain founded on a long g 140. De- 
 possession, uninterrupted and undisputed that is to say, fiction of 
 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 peace- 
 able possession may serve to establish the acquisition of do- 
 main. Modestinus, Digest, lib. 3, de Usurp, et Usucap., says, 
 in conformity to the principles of the Roman law, that usu- 
 eaption is the acquisition of domain by possession continued 
 during a certain period prescribed by law. These three defi- 
 nitions 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 usueaption. 
 
 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 usueaption is but lit- 
 tle used in French ; and the word prescription implies, in that 
 
 (123) We have seen that twenty years' creates a right. See ante, 125 to 127 ; 
 undisturbed possession or enjoyment of and see Jlenest v. Pipon, Knapp's Rep. 
 an easement or profit amongst nations, 60 to 73 ; where see the law of nations 
 as well as amongst private individuals, fully examined. C. 
 
 36 Y 2 281
 
 187 OP USUCAPTION AND PRESCRIPTION AMONG NATIONS. 
 
 BOOK ii. language, every thing expressed by the Latin terms umcapio 
 CHAP, xi. an( j p rsescr iptj ; wherefore we shall make use of the word 
 prescription wherever we have not particular reasons for em- 
 ploying the other. 
 
 141. Usu- Now, to decide the question we have proposed, we must 
 
 caption and fi rs t see whether usucaption and prescription are derived from 
 
 prescription t j^ j aw O f na t ure . Many illustrious authors have asserted 
 
 tbTiaw of an d proved them to he so.* .f hough in this treatise we fre- 
 
 nature. quently 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 ap- 
 proves its establishment, for the advantage of the human 
 [ 188 ] 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 in- 
 troducing 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 appear- 
 ances 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 por- 
 tion with his wife, and who might have made other acquisi- 
 tions, 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 pro- 
 perty 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 re- 
 vive 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 re- 
 claim 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 
 
 * See Grotius de Jure Belli et Pacis, Gent. lib. iv. cap. xii. and especially 
 lib. ii. cap. iv. Puffendorf, Jus Nat. et Wolfius, Jus Nat. part iii. cap. vii. 
 282
 
 OF USUCAPTION AND PRESCRIPTION AMONG NAilONS. 188 
 
 entirely renounced and abandoned it. This is what forms the BOOK " 
 
 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 ab- 
 solute 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 inva- 
 riable, 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 [ 189 ] 
 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 docu- 
 ment 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 pos- 
 sessor, when by his own fault he has suffered matters to pro- 
 ceed 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 proprie- 
 tor, and has never abandoned his right, he is bound in con- 
 science, 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. 
 
 As prescription cannot be grounded on any but an abso- ? I 42 - Whai 
 lute or lawful presumption, it has no foundation, if the pro- f ound |jJ^J 
 prietor has not really neglected his right. This condition fo/JJ^Jy 
 implies three particulars : 1, that the proprietor cannot allege prescription 
 an invincible ignorance, either on his own part, or on that of 
 the persons from whom he derives his right ; 2, that he can- 
 not justify his silence by lawful and substantial reasons ; 3, 
 that he has neglected his right, or kept silence during a con- 
 siderable number of years : for, the negligence of a few years, 
 
 283
 
 189 OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. 
 
 BOOK IL being incapable of producing confusion and rendering doubt- 
 CHAP. xi. u | k e res p ec ti ve 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. im- What we have remarked in the preceding section, relates 
 TeTcriUion to ordinary prescription. There is another called immemo- 
 n ' rial, 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 prov- 
 ing 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 pre- 
 sumption 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 per- 
 mitted to call in question a right acknowledged time immemo- 
 rial, when the means of proving it were destroyed by time ? 
 Immemorial possession, therefore, is an irrefragable title, and 
 [ 190 ] 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. 
 
 2 144. In cases of ordinary prescription, the same argument can- 
 
 Claimant ai- not be used against a claimant who alleges just reasons for 
 leging rea- n i s silence, as, the impossibility of speaking, or a well-founded 
 
 Sence* *"* ^ ear ' ^ C "> ^ ecause t ^ iere * s tnen no longer any room for a pre- 
 sumption 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 can- 
 not therefore be debarved 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. 
 g 145. Pro- It is also very evident that we cannot plead prescription 
 prietor suf- j n opposition to a proprietor who, being for the present un- 
 showto a ^ e to prosecute his right, confines himself to a notification, 
 thaUwMioes by any token whatever, sufficient to show that it is not his 
 not mean to intention to abandon it. Protests answer this purpose. With 
 abandon his sovereigns it is usual to retain the title and arms of a sove- 
 reignty or a province, as an evidence that they do not relin- 
 quish their claims to it. 
 
 i 146. Pre- Every proprietor who expressly commits, or omits, certain 
 ecription acts, which he cannot commit or omit without renouncing his 
 founded on r ight, sufficiently indicates by such commission or omission 
 
 284
 
 OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. 190 
 
 that it is not his intention to preserve it, unless, by an express BOOK n. 
 reservation, he declare the contrary. We are undoubtedly CttAP< XI ' 
 
 authorized to consider as true what he sufficiently manifests the actions 
 on occasions where he ought to declare the truth : conse- rie " 
 quently, we may lawfully presume that he abandons his right ; 
 and, if he would afterwards resume it, we can plead prescrip- 
 tion in bar to his claim. 
 
 After having shown that usucaption and prescription are 147. Usu- 
 founded in the law of nature, it is easy to prove that they caption and 
 are equally a part of the law of nations, and ought to take prescription 
 place between different states. For, the law of nations is but bttweeiTna- 
 the law of nature applied to nations in a manner suitable to tions. 
 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. 
 
 It must however be confessed, that, between nations, the 148. More 
 rights of usucaption and prescription are often more difficult difficult be - 
 in their application, so far as they are founded on a presump- t ^*g ll t " ar ~ 
 tion drawn from long silence. Nobody is ignorant how dan- f oun d them 
 gerous it commonly is for a weak state even to hint a claim on a pre'- 
 to the possessions of a powerful monarch. In such a case, B * ni $ a *$ 
 therefore, it is not easy to deduce from long silence a legal des 
 presumption of abandonment. To this we may add, that, as [ 191 ] 
 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, can- 
 not 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. 
 
 But there are other principles that establish the use and 1 149. Other 
 force of prescription between nations. The tranquillity of principles 
 the people, the safety of states, the happiness of the human th r f sc e r f? rc< 
 race, do not allow that the possessions, empire, and other ticn?" 1 * 
 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 
 
 285
 
 191 OF USUCAPTION AND PRESCRIPTION AMONG NATIONw. 
 
 BOOK n. necessity, the loss of her right is a misfortune which she ought 
 , CHAP - XI " 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 pro- 
 vinces 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 expe- 
 dient 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 respect- 
 ing it ( 143) is sufficient to convince every one that it ought 
 necessarily to take place between nations. 
 
 g 150. Ef- Usucaption and prescription being so necessary to the tran- 
 fects of the quillity and happiness of human society, it is justly presumed 
 voluntary ^j. a }} na tions have consented to admit the lawful and rea- 
 t ^ ^ ig sonable use of them, with a view to the general advantage, 
 subject. and even to the private interest of each individual nation. 
 
 Prescription of many years' standing, as well as usucap- 
 tion, 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 pos- 
 [ 192 ] session 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. 
 
 1 151. Law Since prescription is subject to so many difficulties, it would 
 of treaties ^ e ver y p r0 p er that adjoining nations should by treaty adopt 
 in this" 8 m some ru l e on th* 8 subject, particularly with respect to the 
 matter. 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 de- 
 termined any thing in this matter, the nations between whom 
 this custom is in force, ought to conform to it (Prelim. 26). 
 
 286
 
 OF TKEATIES OF ALLIANCE, ETC. 192 
 
 BOOK n. 
 
 CHAP. XII. 
 
 CHAP. XII. 
 
 OF TREATIES OF ALLIANCE, AND OTHER PUBLIC TREA- 
 TIES. (124) 
 
 THE subject of treaties is undoubtedly one of the most im- 152. Na- 
 portant that the mutual relations and affairs of nations can ture of teea - 
 present us with. Having but too much reason to be con-* 168 *^ 24 
 vinced 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 fcedus, is a compact made with a view 
 to the public welfare by the superior power, either for per- 
 petuity, or for a considerable time. 
 
 The compacts which have temporary matters for their ob- us. p ac - 
 ject are called agreements, conventions, and pactions. They tions, agree- 
 are accomplished by one single act, and not by repeated acts. ments > or 
 These compacts are perfected in their execution once for all : 
 treaties receive a successive execution whose duration equals 
 that of the treaty. 
 
 Public treaties can only be made by the superior powers, ? 154. By 
 by sovereigns, who contract in the name of the state. Thus, ^ hom trea - 
 conventions, made between sovereigns respecting their own tiesare 
 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 [ 193 ] 
 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 
 
 (124) See in general, as to the law 47; and, as to commercial treaties in 
 of nations respecting treaties, post, particular, 53, and 615 to 630 ; and see 
 Book IV. Chap. II. Ac., page 432 to each separate treaty, 2 Chitty's Com. 
 452, 1 Chitty's Commercial Law, 38 to Law, p. 183. 
 
 287
 
 193 OF TREATIES OF ALLIANCE. 
 
 IAP. XII. 
 
 BOOK n. 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. Who- As a state that has put herself under the protection of an- 
 ther a state Q^er, has not on tha^. account forfeited her character of sove- 
 tection P may rei g nt j (Book I. 192), she may make treaties and contract 
 make trea- alliances, unless she has, in the treaty of protection, expressly 
 ties. 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 protec- 
 tion. Thus, the protected state cannot promise assistance to 
 the enemies of her protector, nor grant them a passage, 
 g 156. Trea- Sovereigns treat with each other through the medium of 
 ties con- 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 
 tiaries. 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 lilera. 
 If this commission were to have its full effect, they could not 
 be too circumspect in giving it. But, as princes cannot other- 
 wise than by force of arms be compelled to fulfil their engage- 
 ments, 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 
 [ 194 ] refuse to ratify a compact made in virtue of such plenipoten- 
 tiary commission, he should be able to allege strong and sub- 
 stantial reasons, and, in particular, to prove that his minister 
 has deviated from his instructions. 
 
 g 157. Va- A treaty is valid if there be no defect in the manner in 
 lidity of which it has been concluded : and for this purpose nothing 
 treaties. m ore can be required than a sufficient power in the contract- 
 ing parties, and their mutual consent sufficiently declared. 
 J 158. in- An injury cannot, then, render a treaty invalid. He who 
 jury does enters into engagements ought carefully to weigh every thing 
 
 288
 
 AND OTHER PUBLIC TREATIES. 194 
 
 before he concludes them ; he may do what he pleases with BOOK IT. 
 his own property, forego his rights, and renounce his advan- CHAP, xir. 
 tages, as he thinks proper ; the acceptor is not obliged to in- not render 
 quire into his motives, and to estimate their due weight. If we them void, 
 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 de- 
 gree of it shall be capable of invalidating a contract. But sove- 
 reigns 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. 
 
 A sovereign nevertheless is in conscience bound to pay a 159. Duty 
 regard to equity, and to observe it as much as possible in all of . natlonsm 
 his treaties. And, if it happens that a treaty which he has * l res P ect- 
 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 consist- 
 ently with his duty to himself, and without exposing himself 
 to danger, or incurring a considerable loss. 
 
 Though a simple injury, or some disadvantage in a treaty, 160. Nul- 
 be not sufficient to invalidate it, the case is not the same with ^x of trea - 
 those inconveniences that would lead to the ruin of the nation, j^f ^mf* 
 Since, in the formation of every treaty, the contracting parties c i ous to the 
 must be vested with sufficient powers for the purpose, a treaty state, 
 pernicious to the state is null, and not at all obligatory, as no [ 195 ] 
 conductor of a nation has the power to enter into engage- 
 ments 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 Maxi- 
 milian 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.* We have treated of this latter 
 source of invalidity in the twenty-first chapter of Book I. 
 
 For the same reason the want of sufficient powers a 161. Nul- 
 treaty concluded for an unjust or dishonest purpose is abso-^y oftrea - 
 lutely null and void, nobody having a right to engage to do 
 
 * See the French historians. 
 37 Z 289
 
 195 OP TREATIES OF ALLIANCE, 
 
 BOOK n. things contrary to the law of nature. Thus, an offensive 
 CHAP, xii. alliance, made for the purpose of plundering a nation from 
 or dishonest whom no injury has been received, may or rather ought to be 
 purpose. broken. 
 
 162. Whe- It is asked, whether it be allowable to contract an alliance 
 ther an alh- w jth a nation that does not profess the true religion, and 
 contracted C wne ther treaties made with the enemies of the faith are valid, 
 with those Grotius has treated this subject at large :* and the discussion 
 who do not might have been necessary at a time when party -rage still 
 profess the obscured those principles which it had long caused to be for- 
 gion* 61 ' g ott en ; but we may venture to believe that it would be super- 
 fluous 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 Chris- 
 tians, 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 
 [ 196 ] 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. Obli- Jt i s a settled point in natural law, that he who has made 
 observirf a P rom ^ se * an J one ^ as 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 indubita- 
 ble, 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 con- 
 
 * De Jure Belli et Pads. lib. ii. cap. xv. 8, et seq. 
 290
 
 AND OTHER PUBLIC TREATIES. 196 
 
 ductors, ought inviolably to observe their promises and their BOOK n. 
 treaties. This great truth, though too often neglected in CHAP - XIt - 
 practice, is generally acknowledged by all nations :* the re- 
 proach 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, no- 
 thing adds so great a glory to a prince, and to the nation he 
 governs, as the reputation of an inviolable fidelity in the per- 
 formance of promises. By such honourable conduct, as much 
 or even more than by her valour, the Swiss nation has ren- 
 dered herself respectable throughout Europe, and is de- 
 servedly courted by the greatest monarchs who intrust their 
 personal safety to a body-guard of her citizens. The parlia- 
 ment 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 firm basis on which nations may build their con- 
 fidence ; and thus it becomes an unfailing source of power 
 and splendour. 
 
 As the engagements of a treaty impose on the one hand a 154. The 
 perfect obligation, they produce on the other a perfect right, violation of 
 The breach of a treaty is therefore a violation of the perfect a treatv . is 
 right of the party with whom we have contracted ; and this ^ s ^ e 
 is an act of injustice against him. 
 
 A sovereign already bound by a treaty cannot enter into 155. Trea- 
 others contrary to the first. The things respecting which ties cannot 
 he has entered into engagements are no longer at his disposal. be made 
 If it happens that a posterior treaty be found, in any parti- ^T^rea 
 cular point, to clash with one of more ancient date, the new dy existing 
 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 under- 
 stood as speaking of treaties made with different powers.) 
 If the prior treaty is kept secret, it would be an act of con- 
 summate 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 : other- 
 wise 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 [ 197 ] 
 respect to all the articles that do not clash with the prior treaty. 
 
 Mohammed warmly recommend- treaties. Ockley's History of the Sa- 
 ed to his disciples the observance of racens, vol. i. 
 
 291
 
 197 OF TREATIES OF ALLIANCE, 
 
 BOOK ii. There is nothing to prevent a sovereign from entering into 
 CHAP, xn. engagements of the same nature with two or more nations, if 
 166. How he be able to fulfil those several engagements to his different 
 treaties may allies at the same time. For instance, a commercial treaty 
 beconcluded w j^h one na tion does not deprive us of the liberty of afterwards 
 nations with contracting similar engagements with other states, unless we 
 the same have, in the former treaty, bojmd ourselves by a promise not 
 view. 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 pro- 
 bability that both will have occasion for them at the same time. 
 167. The If nevertheless the contrary happens, the more ancient 
 more an- a ]iy j s entitled to a preference : for, the engagement was pure 
 entitled to a a absolute with respect to him ; whereas we could not con- 
 preference, tract 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 The justice of the cause is another ground of preference 
 owe no as- De t ween two allies. We ought even to refuse assistance to 
 an unjust * ne one wnose cause is unjust, whether he be at war with one 
 war. 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. Ge- Grotius divides treaties into two general classes, first, 
 n.eral ^ 1V1 " those which turn merely on things to which the parties were 
 ties! Ea ~ already bound by the law of nature, secondly, those by 
 which they enter into further engagements.* By the former 
 1. Those we acquire a perfect right to things to which we before had 
 that f elate only an imperfect right, so that we may thenceforward de- 
 
 to things al- J , r , i i_ / -i j i 
 
 ready due mand as our due what before we could only request as an 
 by the law office of humanity. Such treaties became very necessary be- 
 of nature, tween the nations of antiquity, who, as we have already ob- 
 served, 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 ord 
 the better to secure the succours they may expect, to deter- 
 mine 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 inter- 
 pretations of that law. Finally, as no nation possesses inex- 
 haustible means of assistance, it is prudent to secure to our- 
 selves 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 
 
 * De Jure Belli et Pacis, lib. ii. cap. xv. 5 
 292 
 
 b- 
 
 ds 
 
 I
 
 AND OTHEE PUBLIC TREATIES. 198 
 
 make no addition to those duties that men owe to each other BOOK n. 
 as brethren and as members of the human society : such are CHAP, xn. 
 those treaties that permit commerce, passage, &c. 
 
 If the assistance and offices that are due by virtue of such 170. Col- 
 a treaty should on any occasion prove incompatible with the lision of 
 duties a nation owes to herself, or with what the sovereign t ! iese . trea " 
 owes to his own nation, the case is tacitly and necessarily S 1 ^ 11 " 3 
 excepted in the treaty. For, neither the nation nor the owe to our- 
 sovereign could enter into an engagement to neglect the care selves. 
 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 suf- 
 ficient 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. 
 
 The treaties by which we simply agree not to do any evilm.Trea- 
 to an ally, to abstain, with respect to him, from all harm, ties in which 
 
 offence, and injury, are not necessary, and produce no new we barcl y 
 ., '. i i i i 1 J / promise to 
 
 right, since every individual already possesses a perfect natu- $ no ^ 
 
 ral right to be exempt from harm, injury, and real offence, jury. 
 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 this manner of thinking were entirely 
 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 rulers of nations, and thus becomes formidable even to 
 those who are little solicitous to merit the appellation of vir- 
 tuous men, and who feel no scruple in silencing the re- 
 proaches of conscience. 
 
 Treaties by which we contract engagements that were not m. Trea- 
 imposed on us by the law of nature, are either equal or un- ties ? on ' 
 
 . t 
 
 Equal treaties are those in which the contracting parties are not na- 
 promise the same things, or things that are equivalent, or, turally due. 
 finally, things that are equitably proportioned, so that the Equal 
 condition of the parties is equal. Such is, for example, a reaties ' 
 
 Z2 293
 
 198 OF TREATIES OF ALLIANCE, 
 
 BOOK ii. defensive alliance, in which the parties reciprocally stipulate 
 CHAP, xii. for the same succours. Such is an offensive alliance, in 
 199 ] 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 in- 
 duce 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 assist- 
 ance 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. 
 "VVe 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. Ob- Nations being no less obliged than individuals to pay a 
 ligationof regard to equity, they ought, as much as possible, to pre- 
 serve ec l ua lity in their treaties. When, therefore, the parties 
 are a ^le 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 con- 
 tracting parties particularly anxious to have the treaty con- 
 cluded, &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 subtilty 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 
 294
 
 AND OTHER PUBLIC TREATIES. 199 
 
 would disgrace a private individual ? The private man, if he BOOK n. 
 is void of conscience, laughs also at the rules of morality and CHAP, xu. 
 justice ; but he laughs in secret : it would be dangerous and 
 prejudicial to him to make a public mockery of them. Men [ 200 ] 
 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 are found to be 
 the safest policy. All the subtilties, 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 Eng- 
 land, by her good faith and generosity to her allies, gained 
 immense credit, and rose to the highest pitch of influence 
 and respectability. 
 
 When people speak of equal treaties, they have commonly 174. Dtf. 
 in their minds a double idea of equality, viz. equality in the ference be- 
 engagements, and equality in the dignity of the contracting twee n e( l ua l 
 parties. It becomes therefore necessary to remove all ambi- g 16 ^^!) 
 guity ; and for that purpose, we may make a distinction be- a nces. 
 tween 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.) 
 
 Unequal treaties are those in which the allies do not reci-i 7 5. u n 
 procally promise to each other the same things, or things equal trea- 
 equivalent ; and an alliance is unequal when it makes a differ- ties and )"* 
 ence in the dignity of the contracting parties. It is true, that JJ^j dh ~ 
 most commonly an unequal treaty will be at the same time an 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 con- 
 siderable power, the second comprehending treaties where 
 the inequality is on the side of the inferior power. 
 
 295
 
 200 OF TKEATIES OF ALLIANCE, 
 
 BOOK ii. Treaties of the former class, without attributing to the more 
 CUAV. xu. 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 mo- 
 narch, wishing to engage a weaker state in his interest, offers 
 ( 201 ] her advantageous conditions, promises her gratuitous suc- 
 cours, or greater than he stimulates for himself: but at the 
 same time he claims a superiority of dignity, and requires re- 
 spect from his ally. It is this last particular which renders 
 the alliance unequal : and to this circumstance we must atten- 
 tively advert ; for, with alliances of this nature we are not to 
 confound those in which the parties treat on a footing of equal- 
 ity, 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 em- 
 barrassed in a momentous war with the house of Austria, 
 and the cardinal de Richelieu wished to humble that formi- 
 dable 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 differ- 
 ence 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 suffi- 
 cient strength to defend her frontiers. This alliance may at 
 certain times have appeared unequal : our forefathers* 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. 
 
 * The author was a native of Switzerland.
 
 AND OTHER PUBLIC TREATIES. 201 
 
 Treaties in which the inequality prevails on the side of the BOOK H. 
 inferior power that is to say, those which impose on the CHAP - *" 
 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 acknow- 
 ledge the superiority of his ally. These conditions are com- 
 monly imposed by the conqueror, or dictated by necessity, r 202 ] 
 which obliges a weak state to seek the protection or assist- 
 ance 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 disparage- 
 ment 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 suc- 
 cours as the more powerful one, it becomes necessary that she 
 should compensate for her inability in this point, by engage- 
 ments which degrade her below her ally, and often even sub- 
 ject 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 of her 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 alii- 
 38 297
 
 202 OF TREATIES OF ALLIANCE, 
 
 BOOK ii. ance, with diminution of sovereignty ; for he deprives him- 
 CHAP, xii. S elf O f one O f t^ mos t important branches of the sovereign 
 power, or renders the exertion of it dependent on another's 
 will. The Carthaginians having, in the treaty that termi- 
 nated 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 When a nation is forced to submit to the will of a superior 
 ai1 u ' j ian ? e power, she may lawfully renounce her former treaties, if the 
 nution'of" P ar ty w ^ n w ^ m s ^ e i g obliged to enter into an alliance re- 
 sovereignty quires it of her. As she then loses a part of her sovereignty, 
 may annul her ancient treaties fall to the ground together with the power 
 preceding ^hat had concluded them. This is a necessity that cannot be 
 ^OAO -| imputed to her as a crime : and since she would have a right 
 J to place herself in a state of absolute subjection, and to re- 
 nounce her own sovereign, if she found such measures neces- 
 sary 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 In general, as every nation ought to be jealous of her glory, 
 ought to careful of maintaining her dignity, and preserving her inde- 
 much as pendence, nothing short of the last extremity, or motives the 
 possible most weighty and substantial, ought ever to induce a people 
 making un- to contract an unequal alliance. This observation is particu- 
 equal alh- i ar jy 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. Mu- Notwithstanding every argument which selfish policy may 
 tual duties SU gg e st to the contrary, we must either pronounce sovereigns 
 witlTrerect * ^ e aDS l ute ty emancipated from all subjection to the law 
 to unequal of nature, or agree that it is not lawful for them, without 
 alliances, just reasons, to compel weaker states to sacrifice their dig- 
 nity, 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 de- 
 spoil 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 prin- 
 ciples of honour more than by the meaner views of sordid 
 interest nay, if they have but sufficient discernment to dis- 
 tinguish 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
 
 AND OTHER PUBLIC TREATIES. 203 
 
 an affection for a power whose superiority over them is dis- BOOK u. 
 played only by the conferring of favours : they cling to such CHAF - x* 1 - 
 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. 
 
 But, as the weaker party ought, in his necessity, to accept 179. In 
 with gratitude the assistance of the more powerful, and not alliances 
 to refuse him such honours and respect as are nattering to j^JJ'JJ 6 
 the person who receives them, without degrading him by " ^ ^/ 
 whom they are rendered; so, on the other hand, nothing is side of the 
 more conformable to the law of nature than a generous grant more P W - 
 of assistance from the more powerful state, unaccompanied erfil1 party< 
 by any demand of a return, or, at least, of an equivalent. 
 And in this instance also, there exists an inseparable connec- [ 204 ] 
 tion 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 suf- 
 ficiently 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 nego- 
 tiations 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 for- 
 merly treated the Egyptians would be a cruelty almost as 
 dreadful as suffering her to perish with famine. 
 
 But there are cases where the inequality of treaties and iso. How 
 alliances, dictated by some particular reasons, is not contrary inequality 
 to equity, nor, consequently, to the law of nature. Such, in ^fjjjjj. 
 general, are all those cases in which the duties that a nation ces may be 
 owes to herself, or those which she owes to other nations, pre- conformable 
 scribe to her a departure from the line of equality. If, for to the law 
 instance, a weak state attempts, without necessity, to erect a of nature - 
 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 neigh- 
 bour may oppose the construction of the fortress ; and, if he 
 does not find it convenient to pay the lesser state a compen- 
 sation for complying with his desire, he may force her com-
 
 204 OF TREATIES OF ALLIANCE, 
 
 BOOK n. pliance, by threatening to block up the roads and avenues of 
 CHAP, xn. communication, to prohibit all intercourse between the two 
 nations, to build fortresses, or to keep an army on the fron- 
 tier, 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 man- 
 ner 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 mode- 
 ration 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 
 [ 205 ] give in the treaty more than he receives. 
 
 181. Ine- It is also consistent with justice to impose the conditions 
 quality im- o f an unequal treaty, or even an unequal alliance, by way 
 of penalty, in order to punish an unjust aggressor, and ren- 
 der 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 neces- 
 sary war. 
 
 182. Other The different treaties of protection those by which a state 
 kinds of renders itself tributary or feudatory to another form so 
 which we man y different kinds of unequal alliances. But we shall not 
 elsewhere Cn repeat here what we have said respecting them in Book I. 
 
 Chap. I. and XVI. 
 
 183. Per- By another general division of treaties or alliances, they 
 reaHreaties ai<e 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 contract- 
 ing 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 sub- 
 sists 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 
 
 300
 
 AND OTHEK PUBLIC TREATIES. 205 
 
 precaution, the very subject of the treaty, or the expressions BOOK n. 
 in which it is couched, may furnish a clue to discover whether CHAP, xu. 
 it be real or personal. On this head we shall lay down some 
 general rules. 
 
 In the first place, we are not to conclude that a treaty is 134. 
 a personal one from the bare circumstance of its naming the Naming the 
 contracting sovereigns : for, the name of the reigning sove- contracting 
 reign is often inserted with the sole view of showing with ^J 1 ^^ 1 
 whom the treaty has been concluded, without meaning thereby (] oes no t 
 to intimate that it has been made with himself personally, render it 
 This is an observation of the civilians Pedius and Ulpian,* personal, 
 repeated by all writers who have treated of these subjects. 
 
 Every alliance made by a republic is in its own nature real, 185. An 
 for it relates only to the body of the state. When a free peo- alliance 
 pie, a popular state, or an aristocratical republic, concludes a a ^,ij^- a 
 treaty, it is the state herself that contracts ; and her engage- rea i. 
 ments do not depend on the lives of those who were only the r 206 ] 
 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 govern- 
 ment 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. , 
 
 Every public treaty, concluded by a king or by any other 186, 
 monarch, is a treaty of the state ; it is obligatory on the Treaties 
 whole state, on the entire nation which the king represents, ^ings or 
 and whose power and rights he exercises. It seems then at other 
 first view, that every public treaty ought to be presumed real, monarchs. 
 as concerning the state itself. There can be no doubt with 
 respect to the obligation to observe the treaty : the only ques- 
 tion 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. Con- 
 junctures change ; a burden that is at present light, may in 
 other circumstances become insupportable, or at least oppres- 
 sive : the manner of thinking among sovereigns is no less 
 
 Digest, lib. ii. tit. xiv. de Pactis, leg. vii. 8. 
 
 2 A 301
 
 206 OF TREATIES OF ALLIANCE, 
 
 BOOK IT. variable ; and there are certain things of which it is proper 
 
 CHAP, xii. 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 tke contracting powers. 
 
 etuai trca- Perpetual treaties, and those made for a determinate 
 
 ties, and period, are real ones, since their duration cannot depend on 
 
 those for a the lives of the contracting parties. 
 
 certain time. j n the same manner, when a king declares in the treaty 
 188. Trea- that it is made "for himself and his successors," it is mani- 
 foTthTkin ^ cs ^ * na * ^is is a real treaty. It attaches to the state, and 
 and his is intended to last as long as the kingdom itself, 
 successors. When a treaty expressly declares that it is made for the 
 189. good of the kingdom, it thus furnishes an evident proof that 
 Treaties the contracting powers did not mean that its duration should 
 made for depend on that of their own lives, but on that of the kingdom 
 
 the good of . S/> o i -if i 
 
 the king- itself. Such treaty is therefore a real one. 
 dom. Independently even of this express declaration, when a 
 
 [ 207 ] 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 power- 
 ful 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 In case of doubt, where there exists no circumstance by 
 presump- which we can clearly prove either the personality or the 
 tion ought rea jity of a treaty, it ought to be presumed a real treaty if it 
 
 to be found- > a j. c r 1,1 A - t ? e j- 
 
 ed in doubt- chiefly consists 01 favourable articles, if of odious ones, a 
 ful cases, 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. When- 
 ever absolute certainty is unattainable in the affairs of men, 
 we must have recourse to presumption. Now, if the con- 
 tracting powers have not explained themselves, it is natural, 
 when the question relates to things favourable, and equally 
 
 302 

 
 AND OTHER PUBLIC TREATIES. 207 
 
 advantageous to the two allies, to presume that it was their BOOK u. 
 intention to make a real treaty, as being the more advan- CHAP - XJI - 
 tageous 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 king- 
 dom in perpetuity ? Every sovereign is presumed to desire 
 the safety and advantage of the state with which he is in- 
 trusted : wherefore it cannot be supposed that he has con- 
 sented to load it for ever with a burdensome obligation. If 
 necessity rendered such a measure unavoidable, it was in- 
 cumbent on his ally to have the matter explicitly ascertained 
 at the time ; and it is probable that he would not have neg- 
 lected this precaution, well knowing that mankind in gene- 
 ral, and sovereigns in particular, seldom submit to heavy and 
 disagreeable burdens, unless bound to do so by formal obliga- 
 tions. 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 AVC 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 lat- [ 208 ] 
 ter should forego an expected advantage, than that the former 
 should suffer a positive loss and detriment. This is the fa- 
 mous 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."* 
 
 We could not dispense with the preceding brief summary 
 of those discussions, lest we should in this part of our trea- 
 tise leave a disgusting chasm. They are, however, but sel- 
 dom resorted to in modern practice, as sovereigns at present 
 generally take the prudent precaution of explicitly ascertain- 
 ing the duration of their treaties. They treat for themselves 
 and their successors, for themselves and their kingdoms, 
 for perpetuity, 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. 
 
 Since public treaties, even those of a personal nature, con- 191. The 
 eluded by a king, or by any other sovereign who is invested obligati 
 with sufficient power, are treaties of state, and obligatory w 
 the whole nation ( 186), real treaties, which were intended 
 
 * De Jure Belli et Pacis, lib. ii. cap. xvi. 16.
 
 208 OF TREATIES OF ALLIANCE, 
 
 BOOK n. to subsist independently of the person who has concluded 
 
 CHAP, xn. them, are undoubtedly binding on his successors ; and the 
 
 from a real obligation which such treaties impose on the state passes 
 
 treaty pass successively to all her rulers as soon as they assume the pub- 
 
 to the sue- jj c authority. The case is the same with respect to the 
 
 !0rs ' rights acquired by those treaties : they are acquired for the 
 
 state, and successively pass tocher conductors. 
 
 It is at present a pretty general custom for the successor 
 to confirm or renew even real alliances concluded by his pre- 
 decessors : and prudence requires that this precaution should 
 not be neglected, since men pay greater respect to an obli- 
 gation 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 en- 
 gaged, and, in the latter, their conscience alone. 
 
 i92.Trea- The treaties that have no relation to the performance of 
 ties accom- re iterated acts, but merely relate to transient and single acts 
 
 pushed once , . , i j j ,. A v / i j j 
 
 for all and wnicn are concluded at once, those treaties (unless indeed 
 perfected, it be more proper to call them by another name*) those 
 conventions, those compacts, which are accomplished once for 
 all, and not by successive acts, are no sooner executed than 
 [ 209 ] 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. Puffendorf f 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 succes- 
 sive 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 par- 
 ties 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 
 
 * See Chap. XII. 153, of this book. 
 
 t Law of Nature and Nations, book 8, c. 9, 8.
 
 AND OTHER PUBLIC TREATIES. 
 
 209 
 
 has ceded it ; the affair is concluded and terminated. But, BOOK n. 
 if the successor discovers any flaw in the deed of transfer, CHAP - xn - 
 and proves it, he is not to he 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 consi- 
 dered as having never existed. 
 
 The third rule given by Puffendorf is no less useless with 193 - T 
 respect to this question. It is, " that if, after the other ally Jj^jJ* 
 has already executed something to which he was bound by e^th 
 virtue of the treaty, the king happens to die before he has one part, 
 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 re- 
 ceiving 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 sub- 
 sists, 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 [ 210 
 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 be- 
 forehand for a thing that has not been delivered to him. 
 But, if the personal treaty related to any of those uncertain 
 and contingent acts which are to be performed as occasions 
 offer, of those promises which are not obligatory if an op- 
 portunity of fulfilling them does not occur, it is only on 
 occasion likewise that the performance of similar acts is due 
 
 39 2A2 305
 
 210 OF TREATIES OF ALLIANCE, 
 
 BOOK n. in return : and, when the term of the alliance is expired, 
 CHAP, xii. 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 in- 
 deed that he certainly owes a debt of gratitude to the sove- 
 reign 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 sur- 
 vivor, 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 provisions 
 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 exten- 
 sion of the treaty) or to pay for the real service he has re- 
 ceived, 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 
 211 ] who has rendered such a service has acquired the right of a 
 
 man who has paid what he did not owe. 
 
 194. The The duration of a personal alliance being restricted to the 
 personal al- persons of the contracting sovereigns, if, from any cause 
 hance ex-^ -whatsoever, one of them ceases to reign, the alliance ex- 
 erf the con- pires : for they have contracted in quality of sovereigns ; and 
 trading he who ceases to reign no longer exists as a sovereign, though 
 power* he still lives as a man. 
 
 Kings do not always treat solely and directly for their 
 Tils' Trea- kingdoms ; sometimes, by virtue of the power they have in 
 ties in their their hands, they make treaties relative to their own persons, 
 own nature or their families; and this they may lawfully do, as the wel- 
 personaL f are O f the state is interested in the safety and advantage of 
 the sovereign, properly understood. These treaties are per- 
 sonal in their own nature, and expire, of course, on the death 
 of the king or the extinction of his family. Such is an alli- 
 ance made for the defence of a king and his family. 
 i6. Alii- It is asked, whether such an alliance subsists with the king 
 ""!f T^~ an< ^ *^ e r y a l family, when, by some revolution, they are de- 
 th" defence P rived of the rown " We have remarked above ( 194), that 
 of the kiag a personal alliance expires with the reign of him who con- 
 and the tracted it : but that is to be understood of an alliance formed
 
 AND OTHER PUBLIC TEEATIES. 211 
 
 with the state, and restricted, in its duration, to the reign of BOOK n. 
 the contracting king. But the alliance of which we are now CHAP, xn. 
 to treat, is of another nature. Although obligatory on the roya i 
 state, since she is bound by all the public acts of her sove- family, 
 reign, 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 acknow- 
 ledges 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 coun- 
 try 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 [ 212 ] 
 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 un- 
 fortunate 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. 
 
 307
 
 212 OF TREATIES OF ALLIANCE, ETC. 
 
 BOOK n. The same question presents itself in real alliances, and, in 
 CHAP, xii. general, in all alliances made with a state, and not in parti- 
 197. Obli- cular with a king, for the defence of his person. An ally 
 gation of a ought, doubtless, to be defended against every invasion, 
 real alliance a g a i ns t every foreign violence, and even against his rebellious 
 allied kb!g subjects ; in the same manner a republic ought to be defended 
 is deposed, 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 
 [ 213 ] 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 proba- 
 bility of being able to procure for him. 
 
 308
 
 OF THE DISSOLUTION AND RENEWAL OF TREATIES. 213 
 
 BOOK II. 
 CHAP. XIII. 
 
 CHAP. XIII. 
 
 OF THE DISSOLUTION AND RENEWAL OF TREATIES. (125) 
 
 AN alliance is dissolved at the expiration of the term for 198. Ex- 
 which it had been concluded. This term is sometimes fixed, piration of 
 as, when an alliance is made for a certain number of years ; jJJ 
 sometimes it is uncertain, as in personal alliances, whose du- ii m i te d 
 ration depends on the lives of the contracting powers. The time, 
 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 jof 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 unsuc- 
 cessful, the moment his allies are convinced of the impossi- 
 bility 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. 
 
 A treaty entered into for a limited time may be renewed 199. Re- 
 by the common consent of the allies, which consent may be newal of 
 either expressly or tacitly made known. When the treaty is treaties - 
 expressly renewed, it is the same as if a new one were con- 
 cluded, 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 hav- 
 ing 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, espe- 
 cially as to the term of duration. For instance, England has [ 214 J 
 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 
 
 (125) See, in general, Grotius, b. 3, to 47, 615 to 630, and ii. Index, tit 
 c. 2; and 1 Chitty's Com. Law, 38 Treaties. 
 
 309
 
 214 OF THE DISSOLUTION AND RENEWAL OF TREATIES. 
 
 BOOK ii. paid : the ally receives it : thus the treaty is indeed tacitly 
 CHAP, xni. 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, sup- 
 posing a sovereign has, in consequence of an agreement with 
 a neighbouring state, paid her a million of money for permis- 
 sion to keep a garrison in one of her strongholds during ten 
 years, if, at the expiration of that term, the sovereign, in- 
 stead 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 con- 
 fessed, 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 foresees 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 sum- 
 mit of power, neglect those who have assisted them in attain- 
 ing it. 
 
 200. How Treaties contain promises that are perfect and reciprocal, 
 a treaty is If one O f t ne allies fails in his engagements, the other may 
 wher^viola com P e ^ n ^ m to fulfil them : a perfect promise confers a right 
 ted by one * do so. But, if the latter has no other expedient than that 
 of the con- of arms to force his ally to the performance of his promises, 
 tracting h e w in sometimes find it more eligible to cancel the promises 
 parties. Qn ^j g Qwn & ^ e a j g() ^ an( j ^ Q Dissolve the treaty. He has un- 
 doubtedly 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 But when there exist between allies two or more treaties, 
 violation of different from and independent of each other, the violation 
 docs'not 3 '' ^ one ^ t ^ lose treat ^ es does not directly disengage the in- 
 cancel an- j ure d P ar *y from the obligations he has contracted in the 
 other. others : for, the promises contained in these do not depend 
 on those included in the violated treaty. But the offended 
 [ 215 ] ally may, on the breach of one treaty by the other party, 
 threaten him with a renunciation, on his own part, of all the 
 
 310 

 
 OF THE DISSOLUTION AND RENEWAL OF TREATIES. 215 
 
 other treaties by which they are united, and may put his BOOK n. 
 threats in execution if the other disregards them. For, if any CHAP. xin. 
 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 subsist- 
 ing between them : and we shall see, in treating of war, that 
 he may do this with justice. 
 
 Some writers* would extend what we have just said to the 202. The 
 different articles of a treaty which have no connection with violation of 
 the article that has been violated, saying we ought to con-JJ^J^j! 
 sider those several articles as so many distinct treaties con- ^ a * cancc i 
 eluded at the same time. They maintain, therefore, that, if the whole, 
 either of the allies violates one article of the treaty, the other ( 126 ) 
 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 pur- 
 pose 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 pru- 
 dence, moderation, the love of peace, and charity would com- 
 monly 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 friend- 
 ship, 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 independ- 
 ent treaties : for, though we do not see any immediate con- 
 nection between some of those articles, they are all connected 
 
 * See Wolfius, Jus Gent. 432. aliens but as native subjects of Great 
 
 (126) In Sutton v. Sutton, 1 Russ. & Britain, and capable of inheriting and 
 
 Mylne Rep. 663, A. D. 1830, it was holding such lands, notwithstanding a 
 
 held in the Court of Chancery, that, subsequent war between the two coun- 
 
 under the treaty of peace, 19 Nov. 1794, tries, and this in respect of the express 
 
 between Great Britain and (the United provision which prevents a subsequent 
 
 States of}- America, the act of 37 Geo. 3, war from wholly determining that part of 
 
 c. 97, passed for the purpose of carrying the treaty. The Master of the Rolls there 
 
 such treaty into execution, American ci- said, It is a reasonable construction, 
 
 tizens, who held lands i Great Britain that it was the intention of the treaty 
 
 on the 28th Oct. 1795, and their heirs that the operation of the treaty should 
 
 and assigns, are at all times to be consi- be permanent, and not depend upon the 
 
 dered, so far as regards these lands, not as continuance of a state of peace." 
 
 311
 
 215 OF THE DISSOLUTION AND RENEWAL OF TREATIES. 
 
 BOOK n. by this common relation, viz. that the contracting powers 
 CHAP, xiii. nave 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 an- 
 other, 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."* He adds, that a clause is some- 
 times 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, 
 [ 216 ] and rendering their alliances durable. (127) 
 203. The I n the same manner as a personal treaty expires at the 
 treaty is void death of the king who has contracted it, a real treaty is dis- 
 by the de- so lved, if one of the allied nations is destroyed, that is to 
 one^fThe sav ' no * on ^ ^ *k e m en who compose it happen all to perish, 
 contracting but, also if, from any cause whatsoever, it loses its national 
 powers. 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 cer- 
 tain 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 keep- 
 ing a garrison in a particular fortress, that prince does not 
 lose his rights, even though the nation from whom he has re- 
 ceived 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 
 
 * Grotius de Jure Belli et Pacis, lib. 1 Russ. & Mylne, 663, is an express 
 
 ii. cap. xv. 15. decision upon such a provision even by 
 
 (127) The case of Button v. Sutton, implication. 
 312
 
 OF THE DISSOLUTION AND RENEWAL OF TREATIES. 216 
 
 that province stood mortgaged to some English merchants. BOOK n. 
 In fact, his conquest extended no further than the acquisition CHAP, xm. 
 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. 
 
 Since a nation or a state, of whatever kind, cannot make 204. Alli- 
 any treaty contrary to those by which she is actually bound ances of a 
 ( 165), she cannot put herself under the protection of another j^ 6 ^* 
 state, without reserving all her alliances and all her existing war d s pu t 
 treaties. For, the convention by which a state places herself herself un- 
 under the protection of another sovereign, is a treaty ( 175) : der the pro- 
 if she does it of her own accord, she ought to do it in such a j^g r f 
 manner, that the new treaty may involve no infringement of 
 her pre-existing ones. We have seen ( 176) what rights a [ 217 ] 
 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 sub- 
 sist, 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 
 her 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 whatso- 
 ever, 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, 
 thought themselves afterwards bound to adhere to their treaty 
 of submission or capitulation, preferably to the alliance which 
 had subsisted between them and the Romans : postquqm de- 
 ditionis, quam societatis, fides sanctior erat, says Livy.* 
 
 Finally, as treaties are made by the mutual agreement of 205. 
 the parties, they may also be dissolved by mutual consent, at Treaties 
 the free will of the contracting powers. And, even though a dissolved b y 
 third party should find himself interested in the preservation JJj 
 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 pro- 
 
 * Lib. vi. cap. x. 
 40 2 B 313
 
 217 OP OTHER PUBLIC CONVENTIONS, ETC. 
 
 BOOK n. mises to each other, which eventually prove advantageous to 
 CHAP, xin. 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. 
 
 [ 218 ] CHAP. XIV. 
 
 CHAP, xiv. OF OTHER PUBLIC CONVENTIONS, OF THOSE THAT ARE MADE 
 BY SUBORDINATE POWERS, PARTICULARLY OF THE AGREE- 
 MENT CALLED IN LATIN SPONSIO, AND OF CONVENTIONS OF 
 SOVEREIGNS WITH PRIVATE PERSONS. 
 
 206. Con- THE public compacts, called conventions, articles of agree- 
 ventions m ent, &c., when they are made between sovereigns, differ 
 sovereigns. fr m 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 sove- 
 reigns 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 unne- 
 cessary repetitions : and it were equally unnecessary to enter 
 into an enumeration of the various kinds of these conven- 
 tions, which are always of the same nature, and differ only 
 in the matter which constitutes their object. 
 
 207. But there are public conventions made by subordinate 
 
 ^ hos fj. de powers, in virtue either of an express mandate from the 
 natTpoiers. 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 re- 
 quire the exercise of that authority. 
 
 The appellation of inferior or subordinate powers is given 
 to public persons who exercise some portion of the sovereignty 
 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
 
 OF OTHER PUBLIC CONVENTIONS, ETC. 218 
 
 convention is made in the name of the sovereign himself, who BOOK n. 
 contracts by the mediation and ministry of his delegate or CHAP. XIT. 
 proxy : this is the case we have mentioned in 156. 
 
 But public persons, by virtue of their office, or of the com- 
 mission 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 commis- 
 sion itself, the nature of the affairs with which these persons 
 and 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 [ 219 ] 
 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. 
 
 If a public person, an ambassador, or a general of an army, 208. 
 exceeding the bounds of his commission, concludes a treaty Treaties 
 or a convention without orders from the sovereign, or without jj n lu ^ c 
 being authorized to do it by virtue of his office, the treaty is person^ 
 null, as being made without sufficient powers ( 157) : it can- without 
 not become valid without the express or tacit ratification of orders from 
 the sovereign. The express ratification is a written deed by th . e sove ~ 
 which the sovereign approves the treaty, and engages to ob- without* 
 serve it. The tacit ratification is implied by certain steps sufficient 
 which the sovereign is justly presumed to take only in pur- powers, 
 suance 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 re- 
 quired, as such reservation is usually understood to imply 
 an express ratification, it is absolutely requisite that the treaty 
 be thus expressly ratified before it can acquire its full force. 
 
 By the Latin term, sponsio, we express an agreement re- 209. The 
 lating to affairs of state, made by a public person, who ex- 1 
 ceeds 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 pre- 
 vailing on the state or sovereign to ratify the articles he has 
 agreed to : otherwise his engagement would be nugatory and 
 
 315
 
 219 OF OTHER PUBLIC CONVENTIONS, ETC. 
 
 BOOK n. illusive. The foundation of this agreement can be no other, 
 
 CHAP, xiv. 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 Furcse Caudinse 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 Furcse Caudime, without hope 
 of escaping, concluded a shameful agreement with the Sam- 
 nites informing them, however, that they could not make a 
 real public treaty (fcedus) without orders from the Roman 
 people, without the feciales, and the ceremonies consecrated 
 
 [ 220 ] 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 host- 
 ages ; after which, having made the Roman troops lay down 
 their arms, and obliged them to pass under the yoke, he dis- 
 missed them. The senate, however, refused to accede to the 
 treaty, delivered up those who had concluded it to the Sam- 
 nites, who refused to receive them and then thought them- 
 selves free from all obligation, and screened from all reproach.* 
 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 situ- 
 ation they were in before the agreement, by sending back the 
 whole army to their encampment at the Furcae Caudinoe: 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 It presents two questions first, what is the person bound 
 to ^' W ^ k as ma ^ e an agreement (sponsor), if the state dis- 
 avows it? Secondly, what is the state bound to do? But, 
 
 agreement previous to the discussion of these questions, it is necessary 
 to observe with Grotius,f 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 man- 
 ner whatever conferred the necessary powers for the pur- 
 pose: she has neither expressly given them by her injunc- 
 tions 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 con- 
 
 * Livy, lib. be. f De Jure Belli et Pacis, lib. ii. cap. iv. 16. 
 316
 
 OF OTHER PUBLIC CONVENTIONS, ETC. 220 
 
 vention, a compact relative to himself, to his troops, or to BOOK n. 
 the occurrences of war : but he has no power to conclude a CHAP, xiv. 
 treaty of peace. He may bind himself, and the troops under 
 his command, on all the occasions where his functions re- 
 quire that he should have the power of treating ; but he can- 
 not bind the state beyond the extent of his commission. 
 
 Let us now see to what the person promising (sponsor) is 211. To 
 bound, when the state disavows the agreement. We ought what the 
 not here to deduce our arguments from the rules which ob- Jou^Jwh^n 
 tain between private individuals under the law of nature : i t j s <&.. 
 for, the nature of the things in question, and the situation avowed, 
 of the contracting parties, necessarily make a difference be- 
 tween 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 accom- [ 221 ] 
 plish 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, with- 
 out orders and without authority, engages for the perform- 
 ance 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 au- 
 thority: 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 
 promiser has deceived him by saying he was sufficiently au- 
 thorized, he has a right to punish him. But if, like the 
 Roman consuls at the Furcae Caudinse, the promiser 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 advan- 
 tageous conditions, and the temptation of some present ad- 
 vantages, 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 
 
 2B2 317
 
 221 OF OTHER PUBLIC CONVENTIONS, ETC. 
 
 BOOK ii. in a dangerous situation, they, in suffering a victory to escape 
 CHAP xiv. them, of which the nature of the ground gave them a cer- 
 tainty ; 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 
 officers 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 bag- 
 gage 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 (sponsor es) ? 
 They themselves judged that they ought to be delivered up to 
 [ 222 ] the Samnites. This was not a natural consequence of the 
 agreement (spomionis] ; 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 engage- 
 ment a tacit clause of the agreement called sponsio, since the 
 Romans delivered up all the sponsores, all those who had pro- 
 mised: this was a maxim of their fecial law.* 
 
 If the sponsor has not expressly engaged to deliver himself 
 up, and if established custom does not lay him under an obli- 
 gation 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 mak- 
 ing 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 be- 
 
 * I have said in my preface, that it gave rise. They had also the care 
 the fecial law of the Romans was their of the ceremonies on the declaration 
 law of war. The college of the feciales of war, and on concluding treaties of 
 were consulted on the causes that peace. The feciales were likewise con- 
 might authorize the nation to engage suited, and their agency employed, in 
 in a war, and on the questions to which all public treaties.
 
 OF OTHER PUBLIC CONVENTIONS, ETC. 222 
 
 cause an advantage may be taken of its having been concluded BOOK n. 
 without authority such a proceeding would undoubtedly be CHAP - "^ 
 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 dis- 
 honourable to the state ? Must he advise the sovereign to 
 ratify it ? He will content himself with laying open the mo- 
 tives 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 pretend- 
 ing 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 
 their 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 [ 223 ] 
 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 promiser 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 pre- 
 sumed to have personally pledged himself for suoh indemnifi- 
 cation ; and he is bound to make it, in order to discharge his 
 promise, as did Fabius Maximus in the instance mentioned by 
 Grotius.* But there are occasions when the sovereign may 
 
 * Lib. ii. chap. xv. 16. Fabius ment with the enemy which the se- 
 Maximus having concluded an agree- nate disapproved, sold a piece of land 
 
 319
 
 223 OF OTHER PUBLIC CONVENTIONS, ETC. 
 
 BOOK ii. forbid him to act in that manner, or to give any thing to the 
 CHAP, xiv. enemies of the state. 
 
 212. To We have shown that a state cannot be bound by an agree- 
 what the ment made without her orders, and without her having granted 
 sovereign is an y p OWer f or 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 disa- 
 vowal, and becomes as perfect a nullity as if it had never ex- 
 isted. 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, 
 [_ 224 ] at the same time that he refuses to ratify it ? We should 
 here distinguish the nature of the things that have been exe- 
 cuted, 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 im- 
 prudence, and commits an egregious error, into which he has 
 not been led by the state with which he supposes he has con- 
 tracted. 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 re- 
 ceived, 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 Furcse Cau- 
 dinae, the advantage simply consists in her escape from an 
 impending danger, her preservation from a threatened loss, 
 
 for which he received two hundred ransom of the prisoners. Aurel. Vic- 
 thousand sesterces, in order to make tor, de Viris Illustr. Plutarch's Life 
 good his promise. It related to the of Fabius Maximus. 
 320
 
 OF OTHER PUBLIC CONVENTIONS, ETC. 224 
 
 such advantage is a boon of fortune, which she may enjoy BOOK n. 
 without scruple. Who would refuse to be saved by the folly CHAP ' XIY ' 
 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 con- 
 suls, they ought to send back the army to the Furcse Caudi- 
 nae, and restore every thing to its former state. Two tri- 
 bunes 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 Sam- 
 nites take advantage of conjunctures, in order to give law to 
 the Eomans, and to wrest from them a shameful treaty, 
 they are so imprudent as to treat with the consuls, who ex- 
 pressly declare themse'ves 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 rati- 
 fication 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 de- 
 claring 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 [ 225 ] 
 advantage of it, as generals in war do of the mistakes of an 
 unskilful opponent. Suppose a conqueror after having con- 
 cluded 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 ratifi- 
 cation, 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 shame- 
 ful 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 pre- 
 41 321
 
 225 OF OTHER PUBLIC CONVENTIONS, ETC. 
 
 BOOK n. tensions as far as the public welfare will allow. For, we 
 CHAP, xiv. OU ght never to abuse the generosity and noble confidence 
 even of an enemy. Pufiendorf* thinks that the treaty at 
 the Furcse Caudinae contained nothing that was too severe 
 or insupportable. That author seems to make no great ac- 
 count 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, whicK 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 sub- 
 lime 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 oppo- 
 sition 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 modern history. The Swiss, 
 dissatisfied with France, entered into an alliance with the em- 
 peror 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 in- 
 stalments, the sum of six hundred thousand crowns ; whereas 
 the Swiss, on their side, promised nothing further than to re- 
 turn home to their own country, thus remaining at liberty 
 to attack France again, if they thought proper. They re- 
 ceived hostages, and departed. The king was very much dis- 
 satisfied with the treaty, though it had saved Dijon, and rescued 
 the kingdom from an imminent and alarming danger ; and he 
 [ 226 ] refused to ratify it."f It is certain that La Trimouille had 
 exceeded the powers he derived from his commission, espe- 
 cially 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 
 
 * Jus Nat. et Gent. lib. yiii. cap. ix. f Guicciardini, book xii. chap, ii. 
 I 12. De Watteville's History of the Helvetic 
 
 Confederacy, part ii. p. 185, Ac. 
 322
 
 OF OTHER PUBLIC CONVENTIONS, ETC. 226 
 
 could only blame their own imprudence. But, as it manifestly BOOK n. 
 appeared that La Trimouille did not behave towards them with AP " XIV - 
 candour and honesty, since he had deceived them on the sub- 
 ject of the hostages, by giving, in that character, men of the 
 meanest rank, instead of four of the most distinguished citi- 
 zens, as he had promised,* the Swiss would have been justi- 
 fiable 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. 
 
 The promises, the conventions, all the private contracts of 213. Pri- 
 the sovereign, are naturally subject to the same rules as those vate con ' 
 of private persons. If any difficulties arise on the subject, it ^eitigu. * 
 is equally conformable to the rules of decorum, to that deli- 
 cacy 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. 
 
 The conventions and contracts which the sovereign, in his g 214. Con- 
 sovereign character and in the name of the state, forms with fractf madc 
 private individuals of a foreign nation, fall under the rules b ^ w e l * h 
 we have laid down with respect to public treaties. In fact, ^nTin the 
 when a sovereign enters into a contract with one who is name of the 
 wholly independent of him and of the state, whether it be 8tate - 
 with a private person, or with a nation or sovereign, this cir- 
 cumstance does not produce any difference in the rights of 
 the parties. If the private person who has treated with the 
 sovereign is his subject, the rights of each party in this case 
 also are the same : but there is a 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 : [ 227 ] 
 it must be either upon the same principle which invalidates 
 even a public treaty when it is ruinous to the state and incon- 
 sistent 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 con- 
 stitution of each state that we are to learn who are the per- 
 sons, and what is the power, entitled to contract in the name 
 of the state, to exercise the supreme authority, and to pro- 
 nounce on what the public welfare requires. 
 
 When a lawful power contracts in the name of the state, it 215. They 
 lays an obligation on the nation itself, and consequently on * Binding 
 
 on the na- 
 
 * See De Watteville's History of the Helvetic Confederacy, p. 190. 
 
 323
 
 227 OF OTHER PUBLIC CONVENTIONS; ETC. 
 
 BOOK n. all the future rulers of the society. When, therefore, a prince 
 CHAP. XIY. k ag t ne power to form a contract in the name of the state, he 
 tion, and on ] a y g an obligation on all his successors ; and these are not 
 ^ors! UC< '~ l ess Doun d than himself to fulfil his engagements. 
 216. Debts The conductor of the nation may have dealings of his own, 
 of the sove- and private debts ; and his private property alone is liable 
 reign and f or fa e discharge of such debts. But loans contracted for 
 j state. ^ e gery ;[ ce O f fa e s t a te, 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 indis- 
 pensably bound to discharge those debts.* 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, con- 
 tract 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 
 [ 228 ] risked it. It cannot be presumed that a nation has ever con- 
 sented 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 renderher liable for what he borrows, or to in- 
 volve the state in debt. Thus, the king of England, who has 
 the right of making peace and war, has not that of contract- 
 
 * In 1596, Philip II. declared him- could no longer find any one who was 
 
 self a bankrupt, under pretence that an willing to lend him money ; and his 
 
 unfair advantage had been taken of his affairs suffered so severely in conse- 
 
 necossitios. His creditors loudly ex- quence, that he was obliged to replace 
 
 claimed against his conduct, and as- things on their former footing, and to 
 
 serted that no confidence could thence- heal the wound which he had given to 
 
 forward be placed either in his word or the public faith. Grotius, Hist, of 
 
 his treaties, since he interposed the the Disturbances in the Netherlands, 
 
 royal authority to supersede them. He book 
 324 

 
 OF THE FAITH OF TREATIES. 228 
 
 ing national debts, without the concurrence of parliament : BOOK n. 
 because he cannot, without their concurrence, levy any money CHAP - xiy> 
 on his people. 
 
 The case is not the same with the donations of the sove- 217. Do- 
 reign as with his debts. When a sovereign has borrowed nations of 
 without necessity, or for an unwise purpose, the creditor has th . e sove " 
 intrusted the state with his property ; and it is just that the rei) 
 state should restore it to him, if at the time of the transac- 
 tion, 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 reason- 
 able 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 revoca- 
 tion 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 donations, 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. Im- 
 munities 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 be- 
 come 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. 
 
 CHAP. XV. [ 229 ] 
 
 OF THE FAITH OF TREATIES. CHAP - * v - 
 
 THOUGH we have sufficiently established ( 163 and 164) 218 -. 
 the indispensable necessity of keeping promises, and observ- ^d'amo^g 
 ing treaties, the ^subject is of such importance, that we cannot nat i ns. 
 forbear considering it here in a more general view, as inter- 
 esting, not only to contracting parties, but likewise to all 
 nations, and to the universal society of mankind. 
 
 2C 325
 
 229 OF THE FAITH OF TREATIES. 
 
 BOOK H. Every thing which the public safety renders inviolable is 
 CHAP, xv. sacre( j i n 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 all violence, and even ex- 
 empt from fear. Every thing, therefore, which the common 
 safety of mankind and the peace and security of human so- 
 ciety require to be held inviolable, is a thing that should be 
 sacred among nations. 
 
 219. Trea- Who can doubt that treaties are in the number of those 
 things that are to be held sacred by nations ? By treaties 
 en *^ e m <>st important affairs are determined ; by them the pre- 
 tions. tensions of sovereigns are regulated ; on them nations are to 
 depend for the acknowledgment of their rights, and the secu- 
 rity of their dearest interests. Between bodies politic, be- 
 tween sovereigns who acknowledge no superior on earth, 
 treaties are the only means of adjusting their various pre- 
 tensions, of establishing fixed rules of conduct, of ascer- 
 taining 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 The faith of treaties, that firm and sincere resolution, 
 
 faith of trea- that invariable constancy in fulfilling our engagements, of 
 
 ties is sa- w hi c h 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. 
 
 g 221. He He who violates his treaties, violates at the same time the 
 who violates law of nations ; for, he disregards the faith of treaties, that 
 vioiataHhe ^^ w ^ c ^ *^ e ^ aw ^ nat i n s declares sacred ; and, so far 
 law of na- as depends on him, he renders it vain and ineffectual. Doubly 
 tions. 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. 
 [ 230 ] " On the observance and execution of treaties," said a re- 
 spectable sovereign, " depends all the security which princes 
 and states have with respect to each other : and no depend- 
 ence could henceforward be placed in future conventions if 
 the existing ones were not to be observed."* 
 
 g 222. Right As all nations are interested in maintaining the faith of 
 
 of nations treaties, and causing it to be everywhere considered as sacred 
 
 against him an( j inviolable, so likewise they are justifiable in forming a 
 
 confederacy for the purpose of repressing him who testifies a 
 
 * Resolution of the States-General, to the Memorial of the Marquis do St. 
 of the 15th of March, 1726, in answer Philip, Ambassador of Spain.
 
 OF THE FAITH OF TREATIES. 
 
 disregard for it, who openly sports with it, who violates BOOK n. 
 and tramples it under foot. Such a man is a public enemy . CHAP - * Y - , 
 who saps the foundations of the peace and common safety of s rds the 
 nations. But we should be careful not to extend this maxim [f e l * h of teea " 
 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. 
 
 In treating of religion, in the first book of this work, we I 223 - Tk* 
 eould not avoid giving several instances of the enormous lflw of . na ~ 
 abuses which the popes formerly made of their authority. la ^ d t ha 
 There was one in particular, which was equally injurious to all popes, 
 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 contract- 
 ing 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 con- 
 cluded with the sultan Amurath, pronounced, in the pope's 
 name, the king's absolution from his oaths.* In those times 
 of ignorance, people thought themselves really bound by no- 
 thing 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 Christen- 
 dom, and brought on her by her spiritual head. The follow- 
 ing epitaph was written on Uladislaus : 
 
 Romulidas Cannae, 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 [ 231 ] 
 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 
 
 * History of Poland, by the Chevalier Dlugoss, Neugobauer, Sarnicki, Herburt, 
 de Solignac, vol. iv. 112. He quotes De Fulstin, Ac. 
 
 327
 
 231 OF THE FAITH OF TREATIES. 
 
 BOOK ii. English, procured from the pope and the council of Basil an 
 CHAP, xv. ablution f r0 m 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 hos- 
 tilities, had the audacity to absolve him, in 1556, from the 
 oath he had made to observe the truce of Vaucelles.* 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 no- 
 body was bound to observe them or any of them, though they 
 were confirmed by oath. Nor was this all : his holiness, as- 
 suming 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 ple- 
 nitude of power, we condemn, reprobate, break, annul, and 
 deprive of all force and effect, the said articles, and all the 
 other things prejudicial to the above, ^-c.f 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 But who can restrain his indignation at seeing this strange 
 abuse au- abuse authorized by princes themselves ? In the treaty con- 
 ^kices 1 by eluded a * 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 
 [ 232 ] should promise never to absolve the French or Scots from the 
 oaths they were about to make in swearing to the new treaty.^ 
 \ 225. Use The custom generally received in former times, of swearing 
 of an oath ^ ^ e observance of treaties, had furnished the popes with a 
 '' pretext for claiming the power of breaking them, by absolv- 
 ing the contracting parties from their oaths. But, in the 
 constitute 0t P resent ^ a 7 even children know that an oath does not con- 
 tte obiiga- st ^ute the obligation to keep a promise or a treaty : it only 
 tion. (128) gives an additional strength to that obligation, by calling God 
 
 * On these facts, see the French and out a previous declaration of hostili- 
 
 Gcrman historians. " Thus war was ties." De Thou, lib. xvii. 
 
 determined on in favour of the pope : f History of the Treaty of West- 
 
 and after cardinal Caraffa, by virtue of phalia, by Father Bougeant, in 12mo. 
 
 the powers vested in him by his holi- vol. vi. p. 413. 
 
 ness, had absolved the king from the { Choisy's History of Charles V. p. 
 
 oaths he had taken in ratification of 282. 
 
 the truce, he even permitted him to (128) Paley, in his Moral Philoso- 
 
 attack the emperor and his son with- phy, agrees in this view of moral obli- 
 328 

 
 OF THE FAITH OF TREATIES. 
 
 to bear witness. A man of sense, a man of honour, does not BOOK n. 
 think himself less bound by his word alone, by his faith once - Ap - * T ' . 
 pledged, than if he had added the sanction of an oath. Cicero . 
 would not have us to make much difference between a per- 
 jurer 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 con- 
 science ? 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 villany displayed by the per- 
 jurer in plotting harm against his neighbour, that the anger 
 and indignation of the gods is roused."* 
 
 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. 
 
 The oath is a personal act : it can therefore only regard ? 226. it 
 the person of him who swears, whether he swears himself, or does not 
 deputes another to swear in his name. However, as this act nature* of 
 does not produce a new obligation, it makes no change in the obligations, 
 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. 
 
 For the same reason, since the oath can impose no other 1 227. it 
 obligation than that which results from the treaty itself, it e iv . es no P re - 
 gives no pre-eminence to one treaty, to the prejudice of those ^ 
 that are not sworn to. And as, in case of two treaties clash- a b ov e 
 ing with each other, the more ancient ally is to be preferred another. 
 ( 167) ; the same rule should be observed, even though the 
 more recent treaty has been confirmed by an oath. In the [ 232 ] 
 same manner, since it is not allowable to engage in treaties 
 
 gation. It is the modern policy to consuevit. Quis enim deprecatione 
 
 restrain prospective oaths, or rather pro- deorum, non conscientiae fide commo- 
 
 mises, and all extra-judicial oaths not vetur? Propterea, quse poena ab diis 
 
 essential for eliciting evidence upon immortalibus perjuro, haec eadem men- 
 
 past events. C. daci constituta est. Non enim ex pac- 
 
 * At quid interest inter perjurum et tione verborum quibus jusjurandum 
 
 mendacem? Qui mentiri solet, pejerare comprehenditur, sed ex perfidia et 
 
 consuevit. Quern ego, ut mentiatur, malitia per quam insidise tenduntur 
 
 inducere possum, ut pejeret, exorare alicui, dii immortales hominibus irasci 
 
 facile potero : nam qui semel a veritate et succensere consuSrunt. Cicer. Ort. 
 
 deflexit, hie non majori religione ad pro Q. Roscio, comoedo. 
 perjurium quam ad mendacium perduci 
 
 42 2c2 329
 
 233 OF THE FAITH OF TREATIES. 
 
 BOOK n. inconsistent with existing ones ( 165), the circumstance of 
 CHAP, xv. an Oa ^.j 1 w jjj no< . 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 Thus also an oath cannot give validity to a treaty that is 
 cannot give O f its own nature invalid, justify a treaty which is in itself 
 force to a ujyug^ 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. 
 
 g 229. As- The asseverations used in entering into engagements are 
 severations. f orms o f expression intended to give the greater force to pro- 
 mises. 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, in- 
 asmuch 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 ope- 
 rates more powerfully on their minds than the sentiment of 
 duty, it would be imprudent to neglect this method. 
 \ 230. The After what we have said above ( 162), it were unnecessary 
 faith of to undertake in this place to prove that the faith of treaties 
 noTdTend * ^ as no re l a ^ on * *^ e difference of religion, and cannot in any 
 on the dif- manner depend upon it. The monstrous maxim, that no faith 
 ference of is to be kept with heretics, might formerly raise its head amidst 
 religion. the madness of party and the fury of superstition : but it is 
 
 at present generally detested. 
 
 $ 231. Pre- If the security of him who stipulates for anything in his 
 cautions to own f avour prompts him to require precision, fulness, and 
 wording ^ e greatest clearness in the expressions, good faith de- 
 treaties, mands, 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 
 
 330
 
 OF THE FAITH OF TREATIES. 234 
 
 law of nature will class him as far beneath a vulgar cheat as BOOK n. 
 the majesty of kings is exalted above private persons. True CHAP ' **' 
 diplomatic skill consists in guarding against imposition, not 
 in practising it. 
 
 Subterfuges in a treaty are not less contrary to good faith. 232 - Sub - 
 His catholic Majesty, Ferdinand, having concluded a treaty ^^ m 
 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. 
 
 The rules that establish a lawful interpretation of treaties ? 233 - Al 
 are sufficiently important to be made the subject of a distinct jj^ 6 ^^ 
 chapter. For the present, let us simply observe that an evi- p reta tion " 
 dently false interpretation is the grossest imaginable violation inconsistent 
 of the faith of treaties. He that resorts to such an expedient, with the 
 either impudently sports with that sacred faith, or sufficiently faith . of 
 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 :* 
 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,f ordered all those to be killed 
 who had iron clasps to their cloaks. A Roman general, J hav- 
 ing agreed with Antiochus to restore him half of his fleet, 
 caused 6ach of the ships to be sawed in two. All these in- 
 terpretations are as fraudulent as that of Rhadamistus, who, 
 according to Tacitus's account,|| 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. 
 
 Our faith may be tacitly pledged, as well as expressly : it 234. Faith 
 is sufficient that it be pledged, in order to become obligatory : ^titty 
 the manner can make no difference in the case. The tacit pledged - 
 pledging 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, whatever is included in 
 the nature of certain acts which are agreed upon, 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 pro- 
 mise is made to a hostile army who have advanced far into 
 
 * De Jure Belli et Pacis, lib. ii. cap. J Q. Fabius Labeo, according to Va- 
 
 xvi. \ 5. lerius Maximus ; Livy makes no men- 
 
 f Literally, " laid down their iron or tion of the transaction. 
 
 tteel :" hence the perfidious quibble on || Annal. lib. xii. 
 
 the word iron, which cannot be so well Lib. iii. cap. xxiv. g 1. 
 rendered in English.
 
 235 OF SECURITIES GIVEN FOR 
 
 BOOK ii. the country, that they shall be allowed to return home in 
 CHAP, xv. sa f e ty ? ft i s 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.* 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 cruel ty.f 
 
 Grotius, in treating of tacit conventions, speaks of those in 
 which the parties pledge their faith by mute signs.! 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 cus- 
 tom : and there are mute signs which established custom 
 renders as clear and as express as words. Thus, at the present 
 day, by displaying a white flag, a parley is demanded, as ex- 
 pressly as it could be done by the use of speech. Security is 
 tacitly promised to the enemy who advances upon this invita- 
 tion. 
 
 CHAP. XVI. 
 
 CHAP. XYI. OP SECURITIES GIVEN FOR THE OBSERVANCE OF TREATIES. 
 
 g 235. Gua- CONVINCED by unhappy experience, that the faith of 
 ranty. treaties, sacred and inviolable as it ought to be, does not 
 always afford a sufficient assurance that they shall be punc- 
 tually 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 sove- 
 reign. 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 
 
 * Livy, lib. xxxviii. cap. xxv. 
 
 f The Life of Valerian in Crevior's History of the Emperors. 
 
 j Lib. iii. cap. xxiv. 5. 
 
 882
 
 THE OBSERVANCE OF TREATIES. 235 
 
 no sovereign ought to enter into lightly, and without good BOOK n. 
 reason. Princes indeed seldom enter into it unless when they CBAP - * YI -. 
 have an indirect interest in the observance of the treaty, or 
 are induced by particular relations of friendship. The gua- [ 236 ] 
 ranty 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 reci- 
 procally pledge themselves to each other as guarantees for its 
 observance. The guaranty is a kind of treaty, by which as- 
 sistance and succours are promised to any one, in case he has 
 need of them, in order to compel a faithless ally to fulfil his 
 engagements. 
 
 Guaranty being given in favour of the contracting powers, ? 236. it 
 or of one of them, it does not authorize the guarantee to in- s iyes the 
 terfere in the execution of the treaty, or to enforce the obser- ^ a r ^to 
 vance of it, unasked, and of his own accord. If, by mutual interfere un- 
 consent, the parties think proper to deviate from the tenor asked in the 
 of the treaty, to alter some of the articles, or to cancel it alto- execution of 
 gether, or if one party be willing to favour the other by a a treat y* 
 relaxation of any claim, they have a right to do this, and 
 the guarantee cannot oppose it. Simply bound by his pro- 
 mise 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 obser- 
 vation 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) 
 
 As no nation is obliged to do any thing for another nation, g 237. Na- 
 which that other is herself capable of doing, it naturally fol- ture of the 
 lows 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 search for the true sense 
 
 (129) This principle of the law of viduals. 5 Barn. & Ores. 269; 2 Dowl. 
 nations in this respect precisely applies & R. 22 ; 5 Bing. 485. C. 
 to guaranties given by private indi- 
 
 333
 
 236 OF SECURITIES GIVEN FOR 
 
 BOOK n. of the treaty, to weigh the pretensions of him -who claims his 
 CHAP, xvi. g uaran ty an d ? if he finds them ill founded, he may refuse to 
 
 support them, without failing in his engagements. 
 238. The It is no less evident that the guaranty cannot impair the 
 carmo'Thn "S^ 8 of any one who is not a party to the treaty. If, there- 
 pair the f re > it happens that the guarantied treaty proves derogatory 
 rights of a to the rights of those who are not concerned in it, the treaty 
 third party, 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. 
 [ 237 ] This was the reason alleged by France, when, notwithstand- 
 ing her having guarantied the famous pragmatic sanction of 
 Charles VI., she declared for the house of Bavaria, in oppo- 
 sition to the heiress of that emperor. This reason is incon- 
 testably 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 inter 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 ; sove- 
 reigns sometimes reciprocally guaranty their respective states. 
 But we should rather denominate those transactions treaties 
 of alliance, for the purpose, in the former case, of maintain- 
 ing that rule of succession, and, in the latter, of supporting 
 the possession of those states. 
 
 239. Du- The guaranty naturally subsists as long as the treaty that 
 ration of the i s the object of it; and, in case of doubt, this ought always 
 guaranty. ^ Q ^ p resume <j 5 si nce it is required, and given, for the secu- 
 rity of the treaty. But there is no reason which can natu- 
 rally 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. Trea- When there is question of things which another may do or 
 >i ve as we ^ as ^ e w ^ P rom i ses ? as 5 f r 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. A nation may put some of her possessions into the hands 
 
 Pawns, se- O f another, for the security of her promises, debts, or engage- 
 'm ments - If sne thus deposits movable property, she gives 
 pledges. Poland formerly pledged a crown and other jewels 
 to the sovereigns of Prussia. But sometimes towns and pro- 
 vinces are given in pawn. If they are only pledged by a
 
 THE OBSERVANCE OF TREATIES. 237 
 
 deed which assigns them as security for a debt, they serve as BOOK n. 
 a mortgage : if they are actually put into the hands of the ere- CHAP - XTI - 
 ditor, 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. 
 
 The right which the possession of a town or province con- 242. A 
 fers upon him who holds it in pledge, extends no further than nation's 
 to secure the payment of what is due to him, or the perform- j^ r 
 ance of the promise that has been made to him. He may ^oids M** 
 therefore retain the town or the province in his hands, till he pledge, 
 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 pro- [ 238 ] 
 prietor. 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 mort- 
 gagee, 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 in- 
 demnify the state that intrusted him with 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. 
 
 As soon as the debt is paid, or the treaty is fulfilled, the ? 243. How 
 term of the security expires, and he who holds a town or a sheis 
 province by this title is bound to restore it faithfully, in 
 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 sword* a tempting allurement now presents itself: 
 they have recourse to a thousand quibbles, a thousand pre- 
 tences, 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 numerous to convince every sensible nation, 
 that it is very imprudent to make over such securities. 
 
 But if the debt be not paid at the appointed time, or if the ? 244. 
 treaty be not fulfilled, what has been given in security may she 
 be retained and appropriated, or the mortgage seized, at least P^ 
 until the debt be discharged, or a just compensation made. 
 
 * Jura negat sibi nat, nihil HOB arrogat armis. HORAT.
 
 238 OF SECURITIES GIVEN FOR 
 
 The house of Savoy had mortgaged the country of Vaud to 
 can tons 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, in- 
 stead of immediately satisfying their just demands, opposed 
 force to force, and gave them still further grounds of com- 
 plaint : wherefore the cantons, finally successful in the con- 
 test, 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. 
 
 g 245. Finally, there is, in the way of security, another precau- 
 
 Hostages. fo^ O f V ery ancient institution, and much used among nations 
 which is, to require hostages. These are persons of conse- 
 quence, delivered up by the promising party, to him with 
 [ 239 ] 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 The sovereign who receives hostages has no other right 
 right we over them than that of securing their persons, in order to 
 have over detain them till the entire accomplishment of the promises 
 ostages. o w hi c h they are the pledge. He may therefore take pre- 
 cautions to prevent their escaping from him : but those pre- 
 cautions 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 pre- 
 sent age content themselves with the bare parol of their host- 
 ages. 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 ^k e lib er ty of the hostages is the only thing pledged : and 
 w ^ ^ as g/ ven tnem Breaks his promise, they may be 
 detained in captivity. Formerly they were in such cases put 
 to death ; an inhuman cruelty, 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 de- 
 livered himself up as a hostage. 
 248. When As soon as the engagements are fulfilled, the cause for 
 If ^ntback w kich the hostages were delivered no longer subsists : they 
 ' then immediately become free, and ought to be restored with- 
 out delay. They ought also to be restored, if the reason for 
 which they were demanded does not take place : to detain 
 
 336
 
 THE OBSERVANCE OF TREATIES. 239 
 
 them then would be to abuse the sacred faith upon which BOOK n. 
 they are delivered. The perfidious Christiern II., king of CHAP ' XVI - 
 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 adminis- 
 trator, 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.* 
 
 Hostages being delivered on the faith of treaties, and he 249. Whe- 
 who receives them promising to restore them as soon as the ther the y 
 promise of which they are the surety shall be fulfilled, such ^n ed e on e ~ 
 engagements ought to be literally accomplished : and the any ot her 
 hostages should be really and faithfully restored to their for- account 
 mer condition, as soon as the accomplishment of the promise 
 has disengaged them. It is, therefore, not allowable to de- 
 tain them for any other cause ; and I am astonished to find [ 240 ] 
 that some learned writers teach a contrary doctrine.f 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 prin- 
 ciple 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 sove- 
 reign, 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 to take advantage of his detention beyond what has been 
 expressly stipulated. The hostage is delivered for the secu- 
 rity 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 advan- 
 tage 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. With- 
 out 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, 
 
 * History of the Revolutions of Sweden. 
 
 | Grotius, lib. iii. cap. xx. 55. Wolfius, Jus Gent. 503. 
 
 43 2 D 337
 
 240 OF SECURITIES GIVEN FOR 
 
 BOOK n. in the year 1351, the two parties referred the decision of their 
 CHAP, xvr. ^p^es to arbitrators, and Zurich gave hostages. The arbi- 
 trators passed an unjust sentence, dictated by partiality. 
 Zurich, nevertheless, after having made a well-grounded com- 
 plaint on the subject, determined to submit to their decision. 
 But the duke formed new pretensions, and detained the hos- 
 tages,* contrary to the faith of the compromise, and in evident 
 contempt of the law of nations. 
 
 250. They But a hostage may be detained for his own actions, for 
 may be de- crimes committed, or debts contracted in the country while he 
 SSTowii * s * n hostage there. This is no violation of the faith of the 
 actions. treaty. In order to be sure of recovering his liberty, accord- 
 ing to the terms of the treaty, the hostage must not claim a 
 right to commit, with impunity, any outrages against the na- 
 tion by which he is kept ; and when he is about to depart, it 
 is just that he should pay his debts. 
 
 f 251. Of It is the party who gives the hostages that is to provide 
 the support for their support ; for, it is by his order, and for his service, 
 of hostages, ^at ^gy are j n nos t a ge. He who receives them for his own 
 security is not bound to defray the expense of their subsist- 
 ence, but simply that of their custody, if he thinks proper to 
 [ 241 1 se ^ a g uar( l ver them. 
 
 g 252. A The sovereign may dispose of his subjects for the service 
 
 subject can- O f the state ; he may, therefore, give them also as hostages ; 
 
 ie to and the person who is nominated for that purpose is bound 
 
 e a ostage. ^ o bey, 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 hos- 
 tage against his will. With a vassal, the case is otherwise. 
 What he owes to the sovereign, is determined by the condi- 
 tions of his fief; and he is bound to nothing more. Accord- 
 ingly, 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 Hostages ought naturally to be persons of consequence, 
 
 of the host- gince they are required as a security. Persons of mean con- 
 
 es - dition would furnish but a feeble security, unless they were 
 
 given in great numbers. Care is commonly taken to settle 
 
 * Tschudi, voL L p. 421.
 
 THE OBSERVANCE OF TREATIES. 241 
 
 the rank of the hostages that are to be delivered ; and the BOOK n. 
 violation of a compact in this particular is a flagrant derelic- CHAP ' XVI> 
 tion 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 citi- 
 zens of Dijon, as had been stipulated in the famous treaty 
 we mentioned above ( 212). Sometimes the principal per- 
 sons of the state, and even princes, are given in hostage. 
 Francis I. gave his own sons as security for the treaty of 
 Madrid. 
 
 The sovereign who gives hostages ought to act ingenuously 2 2 J 4 - The y 
 in the affair, giving them in reality as pledges of his word, ^^^J 
 and, consequently, with the intention that they should be kept esc apc. 
 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 endea- 
 vouring to escape. Cloelia 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.* [ 242 ] 
 
 If the hostage happens to die, he who has given him is not % 255. whe- 
 obliged to replace him, unless this was made a part of the ther a host - 
 agreement. The hostage was a security required of him:*? e e g T g ofco 
 that security is lost without any fault on his side ; and there replaced, 
 exists no reason why he should be obliged to give another. 
 
 If any one substitutes himself for a time in the place of a 258. Of 
 hostage, and the hostage happens in the interim to diea llimwho 
 natural death, the substitute is free: for, in this case, things ^ f f \ 
 are -to be replaced in the same situation in which they would hostage, 
 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 con- 
 trary, 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. 
 
 If a prince who has been given in hostage succeeds to the ? 257. A 
 crown, he ought to be released on the delivery of another bost *s c su<: - 
 sufficient hostage, or a number of others, who shall together JJ^Vn. 
 constitute an aggregate security equivalent to that which he 
 himself afforded when he was originally given. This is evi- 
 dent from the treaty itself, which did not import that the 
 king should be a hostage. The detention of the king's per- 
 son by a foreign power is a thing of too interesting a nature 
 to admit a presumption that the state had intended to expose 
 
 * Et Romani pignus pacis ex fcedere restituerunt. Tit Liv. lib. ii. cap. xiii.
 
 242 SECURITIES GIVEN FOR THE OBSERVANCE OF TREATIES. 
 
 BOOK n. herself to the consequences of such an event. Good faith 
 _CHAP. XVI ' 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 re- 
 storing 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 evi- 
 dent, 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 The liability of a hostage, as that of a city or a country, 
 liability of ex pi re s with the treaty which it was intended to secure 
 mST ( 243 > 248 ) : and consequently, if the treaty is personal, 
 the treaty, the hostage is free at the moment when one of the contract- 
 ing powers happens to die. 
 
 g 259. The The sovereign who breaks his word after having given host- 
 violation of ages, 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 
 hostages, hostage, that sovereign has not a right wantonly to sacrifice 
 [ 243 ] 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 party to whom the other fails in his engagements. Host- 
 ages 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. 
 
 g 260. The At the moment when the sovereign who has given the 
 hwrtMN* 6 hostage nas violated his faith, the latter ceases to retain the 
 whence character of a hostage, and becomes a prisoner to the party 
 who has who had received him, and who has now a right to detain him 
 given him in in perpetual captivity. But it becomes a generous prince to 
 fails in his re f ram f rom an ex ertion of his rights at the expense of an 
 
 340
 
 OF THE INTERPRETATION OF TREATIES. 
 
 243 
 
 innocent individual. And as the hostage is no longer bound BOOK n. 
 by any tie to his own sovereign who has perfidiously aban-- CHAP ' " 
 
 doned him, if he chooses to transfer his allegiance to the engage- 
 prince who is now the arbiter of his fate, the latter may ac- ments - 
 quire 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. 
 
 We have already observed that the life of a hostage can- 261. Of 
 not be lawfully taken away on account of the perfidy of the the ri 8 ht 
 party who has delivered him. The custom of nations, the " d m d u 
 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 autho- 
 rized, 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.* 
 The emperor Julian made the same declaration, f 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. 
 
 CHAP. XVII. [ 244 ] 
 
 OF THE INTERPRETATION OF TREATIES. (130) CHAP. XTII. 
 
 IF the ideas of men were always distinct and perfectly g 262. Ne- 
 (L'terminate, if, for the expression of those ideas, they had cessity of 
 none but proper words, no terms but such as were clear, pre- establisl \ 5n s 
 cise, and susceptible only of one sense, there would never J^r e tltbn. 
 
 * Tit. Liv. lib. xxviii. cap. xxxiv. the same. (Ephinstone v. Sedreechund, 
 t See Grotius, lib. iii. cap. xi. 18, Knapp's Rep. 340 ; Undo v. Rodney, 
 not - 2 - Dougl. 313.) Political treaties be- 
 (130) See further as to the construe- tween a foreign state and subjects of 
 tion of treaties, post B. IV. Ch. III. 32, the crown of Great Britain, acting as 
 post, 443. This chapter is highly an independent state under the powers 
 important to be studied, in relation to granted by charter and act of parlia- 
 questions respecting the construction ment, are not a subject of municipal 
 of private contracts, statutes, &c., as jurisdiction: therefore, a bill founded 
 well as of treaties, as many of the rules on such treaties by the nabob of Arcot 
 are capable of general application, against the East India Company, was 
 Questions respecting the conduction, dismissed. (Nabob of Carnatic v. East 
 infraction, or observance of treaties, are India Company, 2 Ves. jun. 56 ; and 
 not in general directly agitated in any see in general, Hill v. Reardon, 2 Sim. 
 municipal court of law or equity of & Stu. 437; Jacob, Rep. 84; 2 Russ. 
 Great Britain, at least as regards the Rep. 608 633; confirming the gene- 
 adjustment of any claims between the ral rule, but admitting the jurisdiction 
 respective states who were parties to of a court of equity, where there has 
 2 D 2 341
 
 244 
 
 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK II, 
 CHAP. X 
 
 be any difficulty in discovering their meaning in the words 
 lil by which they intended to express it : nothing more would be 
 necessary than to understand the language. But, even on 
 
 been a truit.) But, collaterally, courts 
 of law very frequently have to discuss 
 and to construe and give effect to trea- 
 ties, as regards the private rights of.^ 
 subjects ; and, after ascertaining the par- 
 ticular object of the treaty, the courts 
 then construe it nearly by the same 
 rules as affect contracts between private 
 individuals. (Per Eyre, C. J. in Mar- 
 ryatt v. Wikon, 1 Bos. & Pul. 436 439. 
 And see in general, as to the construc- 
 tion of treaties, Marriott's case of 
 Dutch ship, 12, 13, Ac.) One general 
 rule to be ever kept in view is, that it is 
 the essence of a definitive treaty of 
 peace that the commercial friendly in- 
 tercourse of the contracting powers 
 must be replaced in its former state. (2 
 Chalmer's Opinion, 849.) 
 
 Vattel, in pages 244274, elabo- 
 rately lays down several rules for con- 
 struing treaties. In a learned opinion 
 upon the subject, it has been well ob- 
 served, that treaties, being in their 
 nature compacts superseding the com- 
 mon usage, which is, strictly speaking, 
 the law of nations, by particular stipu- 
 lations, are to be argued upon the foot- 
 ing of all obligations which arise from 
 contract, expressed or tacit, whether 
 quasi ex contractu, or necessarily implied 
 by general words of comprehension ; 
 and the principles of the civil law de 
 obligationibiu, which is the law admitted 
 by all nations in Europe, by most in 
 their domestic and by all in national 
 questions, must be allowed to arbitrate 
 in deciding the validity, existence, and 
 meaning of a public treaty, by the same 
 rules and reasonings as when applied 
 to any other contract of private life. 
 Words or characters are merely used 
 to convey, by marks or sounds, the 
 ideas of consent, and to preserve the 
 memory of compacts: now, the end 
 being thus principally to be considered, 
 and the means being regarded only as 
 declarative of the end, if by any other 
 means than by strict words a contract 
 is implied, it is undoubtedly valid when- 
 ever there appears, from any acts or 
 reasonable interpretations of signs, an 
 acknowledged consent, and equitable 
 foundations of contracting; these cir- 
 cumstances making the very substance 
 of a contract. (Sir James Marriott's 
 Opinion on the Duration of the Treaty 
 of Neutrality in 1686, in Chalmer's 
 342 
 
 Collect, of Opinions, vol. 2, 345, 346.) 
 Therefore, the rules of customary con- 
 tracts between private individuals may 
 in general be called in aid. However, 
 in debating any question upon treaties 
 arising between nation and nation, in 
 the age we live in, it is necessary to 
 keep in view the general state and con- 
 dition of the contracting powers, from 
 whence the arguments of public law 
 can only be drawn with any just deci- 
 sion. (2 Chalmer's Col. Op. 347.) It 
 has also been considered that a general 
 commercial treaty, not limited by its 
 terms to a particular time, is only sus- 
 pended by a war; and that, upon the 
 return of peace, it will tacitly revive by 
 implication, unless there be an express 
 declaration to the contrary. (2 Chal- 
 mer's Col. Op. 344355.) In the 
 great case of Marryatt v. Wikon, upon 
 the construction of the treaty between 
 Great Britain and the United States, in 
 error in the Exchequer Chamber, Eyre, 
 Ch. J., after observing that a treaty 
 should be construed liberally, and con- 
 sistent with the good faith which al- 
 ways distinguishes a great nation, said, 
 that courts of law, although not the 
 expounders of a treaty, yet when it is 
 brought under their consideration in- 
 cidentally, they must say how the 
 treaty is to be understood between the 
 parties to the action, and in doing 
 which, they have but one rule by 
 which to govern themselves. We are 
 to construe this treaty as we would 
 construe any other instrument, public 
 or private ; we are to collect from the 
 nature of the subject, from the words 
 and the context, the true intent and 
 meaning of the contracting parties, 
 whether they are A. and B., or happen 
 to be two independent states. (Per 
 Eyre, Ch. J., in Marryatt v. Wilson, 
 1 Bos. & Pul. 436 439. j The United 
 States v. Arredondo et al., 6 Peters' S. C. 
 Rep. 610.} 
 
 With respect to the general rules 
 for construing private contracts, and 
 which equally apply to treaties, see 
 cases collected, Chitty on Bills, 8 ed. 
 190194. Paley on Moral Phil. 126. 
 The editor has purposely refrained from 
 fortifying the excellent rules laid down 
 in the context, by numerous instances, 
 feeling that thatattemptmightratheren- 
 cumber than improve this edition. C.
 
 OF THE INTERPRETATION OF TREATIES. 244 
 
 this supposition, the art of interpretation would still not be BOOK n. 
 useless. In concessions, conventions, and treaties, in all con- CHAP, xvn. 
 tracts, 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 in- 
 terpretation 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 this is not all : 
 conjectures vary, and produce new kinds of cases, that can- 
 not 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 par- 
 ticularly 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. 
 
 The first general maxim of interpretation is, that It is not 263. 1st 
 allowable to interpret what has no need of interpretation. s eneral 
 When a deed is worded in clear and precise terms, when "aiiow- 
 its meaning is evident, and leads to no absurd conclusion, a bie to in- 
 there can be no reason for refusing to admit the meaning terpret what 
 which such deed naturally presents. To go elsewhere i n has . noneed 
 search of conjectures, in order to restrict or extend it, is but t 
 an attempt to elude it. If this dangerous method be once 
 admitted, there will be no deed which it will not render use- 
 less. However luminous each clause may be, however clear 
 and precise the terms in which the deed is couched, all this [ 245 ] 
 will be of no avail, if it be allowed to go in quest of extrane- 
 ous arguments, to prove that it is not to be understood in the 
 sense which it naturally presents.* 
 
 Those cavillers who dispute the sense of a clear and deter- 
 
 (131) See the same maxim, Paley's * Standum omnino est iis, quae verbis 
 Moral Philos. 126 ; Chit, on Bills, 8 ed. expressis, quorum manifestus est sig- 
 190 to 194. There is another rule, (post, nificatus, indicata fuerunt, nisi omnem 
 443, 32), to construe against the party a negotiis humanis certitudinem re- 
 prescribing the terms of treaty, or the movere volueris. WOLF. Jus Nat par 
 superior. vii. n. 822. 
 
 343
 
 245 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. minate article, are accustomed to seek their frivolous subter- 
 fuges in the pretended intentions and views which they attri- 
 
 CHAP. 
 
 264. 2d k u t e to its author. It would be very often dangerous to enter 
 inaxim 1 - if "with them into the discussion of those supposed views that are 
 he who not pointed out in the piece itself. The following rule is better 
 could and calculated to foil such cavillers, and will at once cut short all 
 ought to chicanery: If he who could, and ought to have explained 
 ^hdiied*" himself clearly and fully has not done it, it is the worse for 
 himself has him : he cannot be allowed to introduce subsequent restrictions 
 not done it, which he has not expressed. This is a maxim of the Roman 
 it is to his i aw : Pactionem obscurant Us nocere in quorum fuit potestate 
 n^nt? 6 *"" leg em apertius conscribere.* The equity of this rule is glar- 
 ingly 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 contract- 
 ing parties. 
 
 f 265. 3d The third general maxim or principle on the subject of in- 
 general terpretation is, that Neither the one nor the other of the parties 
 maxim: interested in the contract has a riaht to interpret the deed or 
 
 neither of j* * i* j? TT< /? *. vu 
 
 the con- treaty according to his oivn fancy, lor if you are at liberty 
 trading par- to affix whatever meaning you please to my promise, you will 
 ties has a have the power of obliging me to do whatever you choose, 
 nght to m- con t r ary to my intention, and beyond my real engagements : 
 treatTac- an( ^> on * ne t ner hand, if I am allowed to explain my pro- 
 cording to mises as I please, I may render them vain and illusory, by 
 his own giving them a meaning quite different from that which they 
 fancy. presented to you, and in which you must have understood 
 
 them at the time of your accepting them. 
 
 266. 4th On every occasion when a person could and ought to have 
 general made known his intention, we assume for true against him 
 xim: what he has sufficiently declared. This is an incontestable 
 e- principle, applied to treaties : for, if they are not a vain play 
 tiared, is to of words, the contracting parties ought to express themselves 
 be taken for 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 But it is here asked, which of the contracting parties ought 
 ought to at- to have his expressions considered as the more decisive, with 
 tend rather regpect to tne true mean ing of the contract, whether we 
 
 to the words , r . , , . , - , '. , , 
 
 of the per- should lay a greater stress on the words of him who makes 
 son promis- the promise, than on those of the party who stipulates for its 
 ing, than to performance. As the force and obligation of every contract 
 
 * Digest, lib. ii. tit xiv. de Pactis, nocere potius debere venditori qui id 
 leg. 39. See likewise Digest, lib. xviii. dixerit, quam emptori ; quia potuit n 
 tit i. de Contrahenda Emptione, leg. integra apertius dicere. 
 21. Labeo scripsit obscuritatem paoti 
 344
 
 OF THE INTERPRETATION OP TREATIES. 246 
 
 arise from a perfect promise, and the person who makes BOOK n. 
 the promise is no further engaged than his will is sufficiently CHAP - XY1I> 
 declared, it is very certain, that, in order to discover the those of . the 
 true meaning of the contract, attention ought principally to Jj^ 7 stlpu * 
 be paid to the words of the promising party. For, he volun- 
 tarily 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 party offers the conditions, and 
 the other accepts them ; that is to say, the former proposes 
 what he requires that the other shall oblige himself to perform, 
 and the latter declares the obligations into which he really 
 enters. If the words of him who accepts the conditions bear 
 relation to the words of him who offers them, it is certainly 
 true that we ought to lay our principal stress on the expres- 
 sions of the latter : but this is because the person promising 
 is considered as merely repeating them in order to form his 
 promise. The capitulations of besieged towns may here serve 
 us for an example. The besieged party proposes the condi- 
 tions on which he is willing to surrender the place : the be- 
 sieger accepts them : the expressions of the former lay no 
 obligation on the latter, unless so far as he adopts them. He 
 who accepts the conditions is in reality the promising party ; 
 and it is in his words that we ought to seek for the true mean- 
 ing of the articles, whether he has himself chosen and formed 
 his expressions, or adopted those of the other party, by refer- 
 ring to them in his promise. But still we must bear in mind 
 the maxim above laid down, viz., that what he has sufficiently 
 declared is to be taken as true against him. I proceed to 
 explain myself more particularly on this subject. 
 
 In the interpretation of a treaty, or of any other deed what- \ 268. 5th 
 soever, the question is, to discover what the contracting parties general 
 have agreed upon, to determine precisely, on any particular ^ i ^ e 
 occasion, what has been promised and accepted, that is to^ on r ^jg ht 
 say, not only what one of the parties intended to promise, to be made 
 but also what the other must reasonably and candidly have according to 
 supposed to be promised to him, what has been sufficiently ce j tein 
 declared to him, and what must have influenced him in his ac- ru 
 ceptance. Every deed, therefore, and every treaty, must be 
 interpreted by certain fixed rules calculated to determine its 
 meaning, as naturally understood by the parties concerned at 
 the time when the deed was drawn up and accepted. This is 
 a fifth principle. 
 
 As these rules are founded on right reason, and are conse- 
 quently approved and prescribed by the law of nature, every 
 man, every sovereign, is obliged to admit and to follow them. 
 Unless certain rules be admitted for determining the sense in 
 which the expressions are to be taken, treaties will be only 
 empty words ; nothing can be agreed upon with security, and 
 
 44 345
 
 247 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. it will be almost ridiculous to place any dependence on the 
 CHAP, xvii. e g- ect O f conventions. 
 
 269. The But, as sovereigns acknowledge no common judge, no su- 
 faith of perior that can oblige them to adopt an interpretation founded 
 treaties lays on j ug ru \ es ^ ^ ne f a ith of treaties constitutes in this respect 
 tton'tofoi- a ^ * ne security of the contracting powers. That faith is no 
 low these less violated by a refusal to admit an evidently fair interpre- 
 ruies. tation, than by an open infraction. It is the same injustice, 
 the same want of good faith ; nor is its turpitude rendered 
 less odious by being choked up in the subtilties of fraud. 
 270. Ge- Let us now enter into the particular rules on which the 
 rai rule of interpretation ought to be formed, in order to be just and 
 interpreta- g^ gi nC e the sole object of the lawful interpretation of a 
 deed ought to be the discovery of the thoughts of the author 
 or authors of that deed, whenever we meet with any obscu- 
 rity in it, we are to consider what probably ivere the ideas of 
 those who drew up the deed, and to interpret it accordingly. 
 This is the general rule for all interpretations. It particu- 
 larly serves to ascertain the meaning of particular expressions 
 whose signification is not sufficiently determinate. Pursuant 
 to this rule, we should take those expressions in their utmost 
 latitude when it seems probable that the person speaking had 
 in contemplation every thing which, in that extensive sense, 
 they are capable of designating : and, on the other hand, we 
 ought to restrict their meaning, if the author appears to have 
 confined his idea to what they comprehend in their more 
 limited signification. Let us suppose that a husband has be- 
 queathed to his wife all his money. It is required to know 
 whether this expression means only his ready money, or whe- 
 ther it extends also to that which is lent out, and is due on 
 notes and other securities. If the wife is poor, if she was 
 beloved by her husband, if the amount of the ready money 
 be inconsiderable, and the value of the other property greatly 
 superior to that of the money both in specie and in paper, 
 there is every reason to presume that the husband meant to 
 bequeath to her as well the money due to him as that actu- 
 ally contained in his coffers. On the other hand, if the woman 
 be rich, if the amount of the ready specie be very consider- 
 able, and the money due greatly exceeds in value all the 
 other property, the probability is, that the husband meant 
 to bequeath to his wife his ready money only. 
 
 By the same rule, we are to interpret a clause in the utmost 
 latitude that the strict and appropriate meaning of the words 
 will admit, if it appears that the author had in view every 
 thing which that strict and appropriate meaning comprehends : 
 but we must interpret it in a more limited sense when it ap- 
 pears probable that the author of the clause did not mean to 
 extend it to every thing which the strict propriety of the 
 terms might be made to include. As, for instance, a father, 
 who has an only son, bequeaths to the daughter of his friend 
 
 346
 
 OF THE INTERPRETATION OF TREATIES. 248 
 
 all his jewels. He has a sword enriched with diamonds, BOOK n. 
 given him by a sovereign prince. In this case it is certainly CHAP ' XYn * 
 very improbable that the testator had any intention of making 
 over that honorable badge of distinction to a family of aliens. 
 That sword, therefore, together with the jewels with which 
 it is ornamented, must be excepted from the legacy, and the 
 meaning of the words be restricted to his other jewels. But, 
 if the testator has neither son nor heir of his own name, and 
 bequeaths his property to a stranger, there is no reason to 
 limit the signification of the terms : they should be taken in 
 their full import, it being probable that the testator used them 
 in that sense. 
 
 The contracting parties are obliged to express themselves g 271. The 
 in such manner that they may mutually understand each tenns ar f to 
 other. This is evident from the very nature of the transac- be e f xplai ? d 
 
 m , , ' , . conformably 
 
 tion. Those who form the contract concur m the same in- to comimm 
 tentions ; they agree in desiring the same thing ; and how usage, 
 shall they agree in this instance, if they do not perfectly 
 understand each other ? Without this, their contract will be 
 no better than a mockery or a snare. If, then, they ought 
 to speak in such a manner as to be understood, it is necessary 
 that they should employ the words in their proper signifi- 
 cation, the signification which common usage has affixed to 
 them, and that they annex an established meaning to every 
 term, every expression they make use of. They must not, 
 designedly and without mentioning it, deviate from the 
 common usage and the appropriate meaning of words : and it 
 is presumed that they have conformed to established custom 
 in this particular, as long as no cogent reasons can be ad- 
 duced to authorize a presumption to the contrary ; for, the 
 presumption is, in general, that things have been done as 
 they ought. From all these incontestable truths, results this 
 rule : In the interpretation of treaties, compacts, and promises, 
 we ought not to deviate from the common use of the language, 
 unless we have very strong reasons for it. In all human 
 affairs, where absolute certainty is not at hand to point out 
 the way, we must take probability for our guide. In most 
 cases, it is extremely probable that the parties have expressed 
 themselves conformably to the established usage : and such 
 probability ever affords a strong presumption, which cannot 
 be overruled but by a still stronger presumption to the con- 
 trary. Camden* gives us a treaty, in which it is expressly 
 said that the treaty shall be precisely understood according 
 to the force and appropriate signification of the terms. After 
 such a clause, we cannot, under any pretence, deviate from 
 the proper meaning which custom has affixed to the terms, 
 the will of the contracting parties being thereby formally de- 
 clared in the most unambiguous manner. 
 
 * History of Queen Elizabeth. 
 
 347
 
 284 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. The usage we here speak of is that of the time when the 
 CHAP. xvn. .,.,. ^ or tne deed, of whatever kind, was drawn up and con- 
 
 l 272. in- eluded. Languages incessantly vary, and the signification 
 oTa^cient 11 an( ^ f rce f words change with time. When, therefore, an 
 treaties. ancient deed is to be interpreted, we should be acquainted 
 with the common use of the terms at the time when it was 
 [ 249 ] written ; and that knowledge is to be acquired from deeds 
 of the same period, and from contemporary writers, by dili- 
 gently comparing them with each other. This is the only 
 source from which to derive any information that can be de- 
 pended on. The use of the vulgar languages being, as every 
 one knows, very arbitrary, etymological and grammatical 
 investigations, pursued with a view to discover the true im- 
 port of a word in common usage, would furnish but a vain 
 theory, equally useless and destitute of proof. 
 
 g 273. Of Words are only designed to express the thoughts : thus, 
 quibbles on the true signification of an expression in common use is the 
 words. ^ Q& w hich custom has affixed to that expression. It is then 
 a gross quibble to affix a particular sense to a word, in order 
 to elude the true sense of the entire expression. Mahomet, 
 emperor of the Turks, at the taking of Negropont, having 
 promised a man to spare" his head, caused him to be cut in 
 two through the middle of the body. Tamerlane, after having 
 engaged the city of Sebastia to capitulate, under his promise 
 of shedding no blood, caused all the soldiers of the garrison 
 to be buried alive :* gross subterfuges which, as Cicero re- 
 marks,t only serve to aggravate the guilt of the perfidious 
 wretch who has recourse to them. To spare the head of any 
 one, and to shed no blood, are expressions which, according to 
 common custom, and especially on such an occasion, mani- 
 festly imply to spare the lives of the parties. 
 
 $ 274 A All these pitiful subtilties are overthrown by this unerring 
 rule on this ru i e . When we evidently see what is the sense that agrees with 
 subject. jj ie i n t en n on O f ih e contracting parties, it is not allowable to 
 wrest their words to a contrary meaning. The intention, 
 sufficiently known, furnishes the true matter of the conven- 
 tion, what is promised and accepted, demanded and granted. 
 A violation of the treaty is rather a deviation from the inten- 
 tion which it sufficiently manifests, than from the terms in 
 which it is worded : for the terms are nothing without the 
 intention by which they must be dictated. 
 
 g 275. Men- Is it necessary, in an enlightened age, to say that mental 
 tai reserva- reservations cannot be admitted in treaties ? This is mani- 
 tions. f eg ^ gince, by the very nature of the treaty, the parties are 
 
 * See Puffendorf's Law of Nature thing of the perfidy which others 
 
 and Nations, book v. chap. xii. g 3. attribute to him. 
 
 La Croix, in his Hist, of Timurbec, f Fraus enim adstringit, non dis- 
 
 book v. chap. xv. speaks of this cruelty solvit perjurium. Do Offic. lib. iii, 
 
 of Timurbec, or Tamerlane, towards chap, xxxii. 
 4000 Armenian horsemen, but says no-
 
 OF THE INTERPRETATION OF TREATIES. 249 
 
 bound to express themselves in such manner that they may BOOS n. 
 mutually understand each other ( 271). There is scarcely CHAP X JL T - 
 an individual now to be found who would not be ashamed of 
 building upon a mental reservation. What can be the use of 
 such an artifice, unless to lull the opposite party into a false 
 security, under the vain appearance of a contract ? It is, 
 then, a real piece of knavery. 
 
 Technical terms, or terms peculiar to the arts and sciences, $ 276. In- 
 ought commonly to be interpreted according to the definition terpretation 
 given of them by masters of the art, or persons versed in the e ^ hnical 
 knowledge of the art or science to which the terms belong. I r 250 "] 
 say commonly, for this rule is not so absolute but that we may 
 and even ought to deviate from it, when we have good rea- 
 sons for such deviation; as, for instance, if it were proved 
 that he who speaks in a treaty, or in any other deed, did not 
 understand the art or science from which he borrowed the 
 term, that he was unacquainted with its import as a techni- 
 cal word, that he employed it in a vulgar acceptation, &c. 
 
 If, however, the technical or other terms relate to things $ 277. Of 
 that admit of different degrees, we ought not scrupulously to terms whose 
 adhere to definitions, but rather to take the terms in a sense ^J^ on 
 agreeable to the context ; for a regular definition describes a a eo . rees . 
 thing in its most perfect state ; and yet it is certain that we 
 do not always mean it in that state of its utmost perfection, 
 whenever we speak of it. Now, the interpretation should 
 only tend to the discovery of the will of the contracting 
 parties ( 268) : to each term, therefore, we should affix that 
 meaning which the party whose words we interpret probably 
 had in contemplation. Thus, when the parties in a treaty 
 have agreed to submit their pretensions to the decision of two 
 or three able civilians, it would be ridiculous to endeavour to 
 elude the compromise under the pretence that we can find no 
 civilian accomplished in every point, or to strain the terms so 
 far as to reject all who do not equal Cujas or Grotius. Would 
 he who had stipulated for the assistance of ten thousand good 
 troops, have any reason to insist upon soldiers of whom the 
 very worst should be comparable to the veterans of Julius 
 Csesar ? And if a prince had promised his ally a good gene- 
 ral, must he send him none but a Marlborough or a Turenne ? 
 
 There are figurative expressions that are become so familiar 278. Of 
 in the common use of language, that, in numberless instances, figurative 
 they supply the place of proper terms, so that we ought to ex P ressions - 
 take them in a figurative sense, without paying any attention 
 to their original, proper, and direct signification : the subject 
 of the discourse sufficiently indicates the meaning that should 
 be affixed to them. To hatch a plot, to carry fire and sword 
 into a country,* are expressions of this sort; and there 
 
 * The French expression, "oudir wie of a web,-" "fire and word," literally, 
 trame," which is rendered " hatch a "fire and steel," (or iron). 
 plot," literally signifies, " to lay the warp 
 
 2E 349
 
 250 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. scarcely can occur an instance where it would not be absurd 
 CHAP. XYII. tn ta j, e t j iein J Q tne - r Direct an( j literal sense. 
 
 279. Of There is not perhaps any language that does not also con- 
 equivocal tain words which signify two or more different things, and 
 expressions. ph rases w hich are susceptible of more than one sense. Thence 
 arises ambiguity in discourse. The contracting parties ought 
 carefully to avoid it. Designedly to use it with a view to 
 elude their engagements in the sequel, is downright perfidy, 
 since the faith of treaties obliges the contracting parties 
 f 251 1 to express their intentions clearly ( 271). But, if an am- 
 biguous expression has found its way into a deed, it is the 
 part of the interpreter to clear up any doubt thereby occa- 
 sioned. 
 
 g 280. The The following is the rule that ought to direct the interpre- 
 ruie for tation in this as well as in the preceding case : we ought 
 these two always to affix such meanings to the expressions as is most 
 suitable to the subject or matter in question. For, by a true 
 interpretation, we endeavour to discover the thoughts of the 
 persons speaking, or of the contracting parties in a treaty. 
 Now, it ought to be presumed that he who has employed a 
 word which is susceptible of many different significations, has 
 taken it in that which agrees with his subject. In proportion 
 as he employs his attention on the matter in question, the 
 terms proper to express his thoughts present themselves to 
 his mind ; this equivocal word could therefore only present 
 itself in the sense proper to express the thoughts of him who 
 makes use of it, that is, in the sense agreeable to the subject. 
 It would be a feeble objection to this, to allege that a man 
 sometimes designedly employs equivocal expressions, with a 
 view of holding out ideas quite different from his real thoughts, 
 and that, in such case, the sense which agrees with the sub- 
 ject is not that which corresponds with the intention of the 
 person speaking. We have already observed, that, whenever 
 a man can and ought to make known his intention, we assume 
 for true against him what he has sufficiently declared ( 266). 
 And as good faith ought to preside in conventions, they are 
 always interpreted on the supposition that it actually did pre- 
 side in them. Let us illustrate this rule by examples. The 
 word day is understood of the natural day, or the time dur- 
 ing which the sun affords us his light, and of the civil day, or 
 the space of twenty-four hours. When it is used in a con- 
 vention to point out a space of time, the subject itself mani- 
 festly shows that the parties mean the civil day, or the term 
 of twenty-four hours. It was therefore a pitiful subterfuge, 
 or rather a notorious perfidy, in Cleomenes, when, having 
 concluded a truce of some days with the people of Argos, 
 and finding them asleep on the third night, in reliance on the 
 faith of the treaty, he killed a part of their number, and 
 made the rest prisoners, alleging that the nights were not 
 
 350
 
 OF THE INTERPRETATION OF TREATIES. 251 
 
 comprehended in the truce.* The word steel may be under- BOOK n. 
 stood of the metal itself, or of certain instruments made of CHAP - XYn - 
 it : in a convention which stipulates that the enemy shall lay 
 down their steel, it evidently means their weapons: where- 
 fore, Pericles, in the example related above ( 233), gave a 
 fraudulent interpretation to those words, since it was con- 
 trary to what the nature of the subject manifestly pointed 
 out. Q. Fabius Labeo, of whom we made mention in the 
 same section, showed equal dishonesty in the interpretation 
 of his treaty with Antiochus ; for, a sovereign who stipulates 
 that the half of his fleet or of his vessels shall be restored to [ 252 ] 
 him, undoubtedly means that the other party shall restore to 
 him vessels which he can make use of, and not the half of 
 each vessel when sawed into two. Pericles and Fabius are 
 also condemned by the rule established above ( 274), which 
 forbids us to wrest the sense of the words contrary to the 
 evident intention of the contracting parties. 
 
 If any one of those expressions which are susceptible of dif- \ 281. Not 
 ferent significations occurs more than once in the same piece, necessai r to 
 ive cannot make it a rule to take it everywhere in the same ^aa. 
 signification. For, we must, conformably to the preceding se nso every- 
 rule, take such expression, in each article, according as the where in 
 subject requires, pro substrata materia, as the masters of the the same 
 art say. The word day, for instance, has two significations, ee 
 as we have just observed ( 280). If therefore it be said in 
 a convention, that there shall be a truce of fifty days, on con- 
 dition that commissioners from both parties shall, during eight 
 successive days, jointly endeavour to adjust the dispute, 
 the fifty days of the truce are civil days of twenty-four hours ; 
 but it would be absurd to understand them in the same sense 
 in the second article, and to pretend that the commissioners 
 should labour eight days and nights without intermission. 
 
 Every interpretation that leads to an absurdity ought to be % 282. We 
 rejected ; or, in other words, we should not give to any piece u & ht to re- 
 a meaning from which any absurd consequences would follow, ^^retL 
 but must interpret it in such a manner as to avoid absurdity. tionThat*" 
 As it is not to be presumed that any one means what is a b- leads to an 
 surd, it cannot be supposed that the person speaking intended ^urdUy. 
 that his words should be understood in a manner from which 
 an absurdity would follow. Neither is it allowable to pre- 
 sume that he meant to indulge a sportive levity in a serious 
 deed : for what is shameful and unlawful is not to be pre- 
 sumed. We call absurd not only what is physically impossible, 
 but what is morally so, that is to say, what is so contrary 
 to reason that it cannot be attributed to a man in his right 
 senses. Those fanatic Jews who scrupled to defend them- 
 selves when the enemy attacked them on the Sabbath day, 
 gave an absurd interpretation to the fourth commandment, 
 
 * Puffendorf, lib. v. cap. xii. J 7. 
 
 351
 
 252 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. Why did they not also abstain from dressing, walking, and 
 CHAP, xvir. eat i n g v These also are "tvorks," if the term be strained to 
 its utmost rigour. It is said that a man in England married 
 three wives, in order that he might not be subject to the pe- 
 nalty of the law which forbids marrying two. This is doubt- 
 less a popular tale, invented with a view to ridicule the ex- 
 treme circumspection of the English, who will not allow the 
 smallest departure from the letter in the application of the 
 law. That wise and free people have too often seen, by the 
 experience of other nations, that the laws are no longer a 
 firm barrier and secure defence, when once the executive 
 power is allowed to interpret them at pleasure. But surely 
 they do not mean that the letter of the law should on any 
 occasion be strained to a sense that is manifestly absurd. 
 
 The rule we have just mentioned is absolutely necessary, 
 and ought to be followed, even when the text of the law 01 
 [ 253 ] treaty does not, considered in itself, present either obscurity 
 or ambiguity in the language. For, it must be observed, that 
 the uncertainty of the sense we are to give to a law or a treaty, 
 does not solely proceed from the obscurity or other defect in 
 the expression, but also from the limited nature of the human 
 mind, which cannot foresee all cases and circumstances, nor 
 take in at one view all the consequences of what is decreed 
 or promised, and, finally, from the impossibility of entering 
 into that immense detail. Laws and treaties can only be 
 worded in a general manner ; and it is the interpreter's pro- 
 vince to apply them to particular cases, conformably to the 
 intention of the legislature, or of the contracting powers. 
 Now, we are not in any case to presume that it was their in- 
 tention to establish an absurdity : and therefore, when their 
 expressions, taken in their proper and ordinary meaning, 
 would lead to absurd consequences, it becomes necessary to 
 deviate from that meaning, just so far as is sufficient to avoid 
 absurdity. Let us suppose a captain has received orders to 
 advance in a right line with his troops to a certain post : he 
 finds a precipice in his way: surely his orders do not oblige 
 him to leap headlong down : he must, therefore, deviate from 
 the right line, so far as is necessary to avoid the precipice, 
 but no further. 
 
 The application of the rule is more easy, when the expres- 
 sions of the law or of the treaty are susceptible of two differ- 
 ent meanings. In this case we adopt without hesitation that 
 meaning from which no absurdity follows. In the same manner, 
 when the expression is such that we may give it a figurative 
 sense, we ought doubtless to do this, when it becomes neces- 
 sary, in order to avoid falling into an absurdity. 
 
 \ 283. And It is not to be presumed that sensible persons, in treating 
 that which together, or transacting any other serious business, meant 
 ct Mil and *^ at t ^ ie result f t ^ e ^ r proceedings should prove a mere nul- 
 lity. The interpretation, therefore, which would render a
 
 OF THE INTERPRETATION OF TREATIES. 253 
 
 treaty null and inefficient, cannot be admitted. We may con- BOOK n. 
 sider this rule as a branch of the preceding ; for, it is a kind CHAP - xyn - 
 of absurdity to suppose that the very terms of a deed should void of ef * 
 reduce it to mean nothing. It ought to be interpreted in such fect * 
 a manner as that it may have its effect, and not prove vain 
 and nugatory : and in this interpretation we proceed accord- 
 ing to the mode pointed out in the foregoing section. In 
 both cases, as in all interpretations, the question is, to give 
 the words that sense which ought to be presumed most con- 
 formable to the intention of the parties speaking. If many 
 different interpretations present themselves, by which we can 
 conveniently avoid construing the deed into a nullity or an 
 absurdity, we are to prefer that which appears the most agree- 
 able to the intention of those who framed the deed : the par- 
 ticular circumstances of the case, aided by other rules of in- 
 terpretation, will serve to point it out. Thucydides relates,* 
 that the Athenians, after having promised to retire from the [ 254 ] 
 territories of the Boeotians, claimed a right to remain in the 
 country under pretence that the lands actually occupied by 
 their army did not belong to the Boeotians ; a ridiculous 
 quibble, since, by giving that sense to the treaty, they re- 
 duced it to nothing, or rather to a puerile play. The terri- 
 tories of the BoBotians should evidently have been construed 
 to mean all that was comprised within their former boundaries, 
 without excepting what the enemy had seized during the war. 
 
 If he who has expressed himself in an obscure or equivocal 284. Ob- 
 manner has spoken elsewhere more clearly on the same sub- scure . ex v 
 ject, he is the best interpreter of his own words. We ought^ 6 ^^ ^" 
 to interpret his obscure or equivocal expressions in such a b y others 
 manner that they may agree with those clear and unequivocal clear 
 terms which he has elsewhere used, either in the same deed, in the same 
 or on some other similar occasion. In fact, while we have no aut or ' 
 proof that a man has changed his mind or manner of think- 
 ing, it is presumed that his thoughts have been the same on 
 similar occasions ; so that, if he has anywhere clearly shown 
 his intention with respect to a certain thing, we ought to affix 
 the same meaning to what he has elsewhere obscurely said 
 on the same subject. Let us suppose, for instance, that two 
 allies have reciprocally promised each other, in case of ne- 
 cessity, the assistance of ten thousand foot soldiers, who are 
 to be supported at the expense of the party that sends them, 
 and that, by a posterior treaty, they agree that the number 
 of the auxiliary troops shall be fifteen thousand, without men- 
 tioning their support : the obscurity or uncertainty which re- 
 mains in this article of the new treaty, is dissipated by the 
 clear and express stipulation contained in the former one. 
 As the allies dp not give any indication that they have 
 changed their minds with respect to the support of the auxi- 
 
 * Lib. iv. cap. xcviii. 
 45 2 E 2 353
 
 254 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. liary troops, we are not to presume any such change ; and 
 CHAP. xvn. t nose fift een thousand men are to be supported as the ten 
 thousand promised in the first treaty. The same holds good, 
 and with much stronger reason, when there is question of 
 two articles of the same treaty, when, for example, a prince 
 promises to furnish ten thousand men, paid and maintained 
 at his own expense, for the defence of the states of his ally, 
 and in another article, only promises four thousand men, in 
 case that ally be engaged in an offensive war. 
 
 g 285. in- It frequently happens, that, with a view to conciseness, 
 terpretation p e0 pj e express imperfectly, and with some degree of obscu- 
 thTconne^. r ^ v > things which they suppose to be sufficiently elucidated 
 tion of the by the preceding matter, or which they intend to explain in 
 discourse, the sequel : and moreover, words and expressions have a 
 different force, sometimes even a quite different signification, 
 according to the occasion, their connection, and their rela- 
 tion to other words. The connection and train of the dis- 
 course is therefore another source of interpretation. We 
 must consider the whole discourse together, in order perfectly 
 to conceive the sense of it, and to give to each expression, not 
 so much the signification which it may individually admit 
 of, as that which it ought to have from the context and spirit 
 [ 255 ] of the discourse. Such is the maxim of the Roman law, 
 Incivile est, nisi totd lege perspectd, und aliqud particuld 
 ejus propositd, judicare, vel respondere.* 
 
 $ 286. in- The very connection and relation of the things in ques- 
 terpretation tion help also to discover and establish the true sense of a 
 drawn n f " treaty, or of any other piece. The interpretation ought to 
 tioVand^e- ^ e ma ^ e * n 8UC ^ a manner, that all the parts may appear 
 lation of consonant to each other, that what follows may agree with 
 the things what preceded, unless it evidently appear, that, by the subse- 
 themseives. q uen t clauses, the parties intended to make some alteration 
 in the preceding ones. For it is to be presumed that the 
 authors of a deed had a uniform and steady train of think- 
 ing, that they did not aim at inconsistencies and contradic- 
 tions, but rather that they intended to explain one thing 
 by another, and, in a word, that one and the same spirit 
 reigns throughout the same production or the same treaty. 
 Let us render this more plain by an example. A treaty of 
 alliance declares, that, in case one of the allies be attacked, 
 each of the others shall assist him with a body of ten thou- 
 sand foot, paid and supported; and in another article, it is 
 said that the ally who is attacked shall be at liberty to de- 
 mand the promised assistance in cavalry rather than in in- 
 fantry. Here we see, that, in the first article, the allies have 
 determined the quantum of the succour, and its value, that 
 of ten thousand foot ; and, in the latter article, without ap- 
 pearing to intend any variation in the value or number, they 
 
 * Digest, lib. i. tit iii. De Legibus, leg. 24. 
 354
 
 OF THE INTERPRETATION OF TREATIES. 255 
 
 the nature of the succours to the choice of the party BOOK . 
 who may stand in need of them. If, therefore, the ally who CHAP - XYIT - 
 is attacked calls upon the others for cavalry, they will give 
 him, according to the established proportion, an equivalent 
 to ten thousand foot. But if it appears that the intention 
 of the latter article was, that the promised succours should 
 in certain cases be augmented, if, for instance, it be said, 
 that, in case one of the allies happen to be attacked by an 
 enemy of considerably superior strength, and more powerful 
 in cavalry, the succours should be furnished in cavalry, and 
 not in infantry, it appears that, in this case, the promised 
 assistance ought to be ten thousand horse. 
 
 As two articles in one and the same treaty may bear rela- 
 tion to each other, two different treaties may in like manner 
 have a relative connection ; and, in this case, each serves to 
 explain the other. For instance, one of the contracting par- 
 ties has, in consideration of a certain object, promised to 
 deliver to the other ten thousand sacks of wheat. By a sub- 
 sequent agreement, it is determined, that, instead of wheat, 
 he shall give him oats. The quantity of oats is not ex- 
 pressed ; but it is determined by comparing the second con- 
 vention with the first. If there be no circumstance to prove 
 that it was the intention of the parties, in the second agree- 
 ment, to diminish the value of what was to be delivered, we 
 are to understand a quantity of oats proportioned to the 
 price of ten thousand sacks of wheat ; but if it evidently [ 256 ] 
 appears from the circumstances and motives of the second 
 convention, that it was their intention to reduce the value of 
 what was due under the former agreement, in this case, ten 
 thousand sacks of oats are to be substituted in lieu of the 
 ten thousand sacks of wheat. 
 
 The reason of the law, or of the treaty, that is to say, g 287. in- 
 the motive which led to the making of it, and the object in terpretation 
 contemplation at the time, is the most certain clue to lead f <> unded on 
 us to the discovery of its true meaning ; and great attention 
 should be paid to this circumstance, whenever there is ques- 
 tion either of explaining an obscure, ambiguous, indetermi- 
 nate passage in a law or treaty, or of applying it to a parti- 
 cular case. When once we certainly know the reason which 
 alone has determined the will of the person speaking, we 
 ought to interpret and apply his words in a manner suitable 
 to that reason alone. Otherwise he will be made to speak 
 and act contrary to his intention, and in opposition to his 
 own views. Pursuant to this rule, a prince, who, on grant- 
 ing his daughter in marriage, has promised to assist his in- 
 tended son-in-law in all his wars, is not bound to give him 
 any assistance if the marriage does not take place. 
 
 But we ought to be very certain that we know the true 
 and only reason of the law, the promise, or the treaty. In 
 matters of this nature, it is not allowable to indulge in vague
 
 256 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. 
 CHAP. XYI 
 
 and uncertain conjectures, and to suppose reasons and views 
 YII. w j iere there are none certainly known. If the piece in ques- 
 tion is in itself obscure, if, in order to discover its meaning, 
 we have no other resource than the investigation of the au- 
 thor's views, or the motives of the deed, we may then have 
 recourse to conjecture, and, in default of absolute certainty, 
 adopt as the true meaning, thut which has the greatest de- 
 gree of probability on its side. But it is a dangerous abuse, 
 to go, without necessity, in search of motives and uncertain 
 views, in order to wrest, restrict, or extend the meaning of a 
 deed which is of itself sufficiently clear, and carries no ab- 
 surdity on the face of it. Such a procedure is a violation 
 of that incontestable maxim, that it is not allowable to in- 
 terpret what has no need of interpretation ( 263). Much 
 less are we allowed, when the author of a piece has in the 
 piece itself declared his reasons and motives, to attribute 
 to him some secret reason, which may authorize us in giving 
 an interpretation repugnant to the natural meaning of the 
 expressions. Even though he should have entertained the 
 views which we attribute to him, yet, if he has concealed 
 them, and announced different ones, it is upon the latter 
 alone that we must build our interpretation, and not upon 
 those which the author has not expressed : we assume, % as 
 true, against him, what he has sufficiently declared ( 266).' 
 g 288. We ought to be the more circumspect in this kind of inter- 
 
 Where pretation, as it frequently happens that several motives con- 
 n y hlve~ cur to determine the will of the party who speaks in a law or 
 concurred a promise. Perhaps the combined influence of all those 
 to determine motives was necessary in order to determine his will ; per- 
 the will. na p S each one O f them, taken individually, would have been 
 [ 257 ] sufficient to produce that effect. In the former case, if ive are 
 perfectly certain that it was only in consideration of several 
 concurrent reasons and motives that the legislature or the con- 
 tracting parties consented to the law or the contract, the inter- 
 pretation and application ought to be made in a manner 
 agreeable to all those concurrent reasons, and none of them 
 must be overlooked. But in the latter case, when it is evi- 
 dent that each of the reasons which have concurred in deter- 
 mining the will was sufficient to produce that effect, so that 
 the author of the piece in question would, by each of the rea- 
 sons separately considered, have been induced to form the 
 same determination which he has formed upon all the reasons 
 taken in the aggregate, his words must be so interpreted and 
 applied, as to make them accord with each of those reasons 
 taken individually. Suppose a prince has promised certain 
 advantages to all foreign Protestants and artisans who will 
 come and settle in his estates : if that prince is in no want of 
 subjects, but of artisans only, and if, on the other hand, it 
 appears that he does not choose to have any other subjects 
 than Protestants, his promise must be so interpreted, as to 
 
 356 

 
 OF THE INTERPRETATION OF TREATIES. 257 
 
 relate only to such foreigners as unite those two characters, BOOK n. 
 of Protestants and artisans. But if it is evident that this CHAP. XVH. 
 prince wants to people his country, and that, although he 
 would prefer Protestant subjects to others, he has in particu- 
 lar so great a want of artisans, that he would gladly receive 
 them, of whatever religion they be, his words should be 
 taken in a disjunctive sense, so that it will, be sufficient to be 
 either a Protestant or an artisan, in order to enjoy the pro- 
 mised advantages. 
 
 To avoid tedious and complex circumlocution, we shall make 289. What 
 use of the term, "sufficient reason for an act of the will," to constitutes 
 express whatever has produced that act, whatever has de- reasorTfor 
 termined the will on a particular occasion, whether the will an act of the 
 has been determined by a single reason, or by many concur- will, 
 rent reasons. That sufficient reason, then, will be sometimes 
 found to consist in a combination of many different reasons, 
 so that, where a single one of those reasons is wanting, the 
 sufficient reason no longer exists : and in those cases where 
 we say that many motives, many reasons, have concurred to 
 determine the will, yet so as that each in particular would 
 have been alone capable of producing the same effect, there 
 will then be many sufficient reasons for producing one single 
 act of the will. Of this we see daily instances. A prince, 
 for example, declares war for three or four injuries received, 
 each of which would have been sufficient to have produced 
 the declaration of war. 
 
 The consideration of the reason of a law or promise not 290. Ex- 
 only serves to explain the obscure or ambiguous expressions tensive in- 
 which occur in the piece, but also to exteod or restrict its torpretation 
 several provisions independently of the expressions, and in the reason 
 conformity to the intention and views of the legislature or the of the act. 
 contracting parties, rather than to their words. For, accord- [ 258 ] 
 ing to the remark of Cicero,* the language, invented to 
 explain the will, ought not to hinder its effect. When the 
 sufficient and only reason of a provision, either in a law or a 
 promise, is perfectly certain and well understood, we extend 
 that provision to cases to which the same reason is applicable, 
 although they be not comprised within the signification of the 
 terms. This is what is called extensive interpretation. It is 
 commonly said, that we ought to adhere rather to the spirit 
 than to the letter. Thus, the Mohammedans justly extend the 
 prohibition of wine, in the Koran, to all intoxicating liquors ; 
 that dangerous quality being the only reason that could in- 
 duce their legislator to prohibit the use of wine. Thus, also, 
 if, at the time when there were no other fortifications than 
 walls, it was agreed not to enclose a certain town with walls, 
 
 * Quid 1 verbis satis hoc cautum mur. Quia non potest, verba reperta 
 erat 1 ? Minime. Qua res igitur valuit 7 sunt, non quae impedirent, sed qua in- 
 Voluntas : quse si, tacitis nobis, intel- dicarent voluntatem. Cicer. Orat pro 
 ligi posset, verbis omnino non utere- Csecina. 
 
 367
 
 258 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. it would not be allowable to fortify it with fosses and ram- 
 C.HAP. xvn ' parts, since the only view of the treaty evidently was, to 
 prevent its being converted into a fortified place. 
 
 But we should here observe the same caution above recom- 
 mended ( 287), and even still greater, since the question re- 
 lates to an application in no wise authorized by the terms of 
 the deed. We ought to be thoroughly convinced that we 
 know the true and only reason of the law or the promise, and 
 that the author has taken it in the same latitude which must 
 be given to it in order to make it reach the case to which we 
 mean to extend the law or promise in question. As to the 
 rest, I do not here forget what I have said above ( 268), 
 that the true sense of a promise is not only that which the 
 person promising had in his mind, but also that which has 
 been sufficiently declared, that which both the contracting 
 parties must reasonably have understood. In like manner, 
 the true reason of a promise is that which the contract, the 
 nature of the things in question, and other circumstances, 
 sufficiently indicate : it would be useless and ridiculous to 
 allege any by-views which the person might have secretly 
 entertained in his own mind. 
 
 g 291. The rule just laid down serves also to defeat the pretexts 
 
 Frauds and pitiful evasions of those who endeavour to elude laws or 
 *iud 1D f * * rea *^ es - Grood-faith adheres to the intention : fraud insists 
 or promises. on ^ e terms, when it thinks that they can furnish a cloak for 
 its prevarications. The isle of Pharos near Alexandria was, 
 with other islands, tributary to the Rhodians. The latter 
 having sent collectors to levy the tribute, the queen of Egypt 
 amused them for some time at her court, using in the mean 
 while every possible exertion to join Pharos to the main land 
 by means of moles : after which she laughed at the Rhodians, 
 and sent them a message, intimating that it was very unrea- 
 t sonable in them to pretend to levy on the main land a tribute 
 which they had no title to demand except from the islands.* 
 [ 259 ] There existed a law which forbade the Corinthians to give ves- 
 sels to the Athenians : they sold them a number at five 
 drachmae each.f The following was an expedient worthy of 
 Tiberius : custom not permitting him to cause a virgin to be 
 strangled, he ordered the executioner first to deflower the 
 young daughter of Sejanus, and then to strangle her.J To 
 violate the spirit of the law while we pretend to respect the 
 letter, is a fraud no less criminal than an open violation of 
 it : it is equally repugnant to the intention of the law-maker, 
 and only evinces a more artful and deliberate villany in the 
 person who is guilty of it. 
 
 Restrictive interpretation, which is the reverse of extensive 
 
 * Puffendorf, lib. v.cap.xii. 18. He f Puffend. ibid. Herodotus, lib. ri. 
 quotes Ammianus Marcellinus, lib. xxii. Five drachmae amounted to little more 
 cap. xvi. than three shillings sterling. 
 
 t Tacit. Annal. lib. v. 9. 
 358
 
 OF THE INTERPRETATION OF TREATIES. 259 
 
 interpretation, is founded on the same principle. As we ex- BOOK ir. 
 
 tend a clause to those cases, which, though not comprised CHAP - XYir - 
 
 within the meaning of the terms, are nevertheless comprised 2 92. Re- 
 
 in the intention of that clause, and included in the reasons strictive in- 
 
 that produced it, in like manner, we restrict a law or a pro- terpretation. 
 
 mise, contrary to the literal signification of the terms, our 
 
 judgment being directed by the reason of that law or that 
 
 promise : that is to say, if a case occurs, to which the well 
 
 known reason of a law or promise is utterly inapplicable, that 
 
 case ought to be excepted, although, if we were barely to con- 
 
 sider the meaning of the terms, it should seem to fall within 
 
 the purvieio of the law or promise. It is impossible to think 
 
 of every thing, to foresee every thing, and to express every 
 
 thing : it is sufficient to enounce certain things in such a 
 
 manner as to make known our thoughts concerning things of 
 
 which we do not speak : and, as Seneca the rhetorician says,* 
 
 there are exceptions so clear, that it is unnecessary to express 
 
 them. The law condemns to suffer death whoever strikes 
 
 his father: shall we punish him who has shaken and struck 
 
 his father, to recover him from a lethargic stupor? Shall 
 
 we punish a young child, or a man in a delirium, who has 
 
 lifted his hand against the author of his life ? In the former 
 
 case the reason of the law does not hold good ; and to the 
 
 two latter it is inapplicable. We are bound to restore what 
 
 is intrusted to us : shall I restore what a robber has intrusted 
 
 to me, at the time when the true proprietor makes himself 
 
 known to me, and demands his property ? A man has left 
 
 his sword with me : shall I restore it to him, when, in a trans- 
 
 port of fury, he demands it for the purpose of killing an inno- 
 
 cent person ? 
 
 We have recourse to restrictive interpretation, in order to 293. Its 
 avoid falling into absurdities (see 282). A man bequeaths use, in order 
 his house to one, and to another his garden, the only entrance * a T ld *'" 
 into which is through the house. It would be absurd to sup- s 
 
 pose that he had bequeathed to the latter a garden into into what is 
 which he could not enter : we must therefore restrict the unlawful. 
 pure and simple donation of the house, and understand that 
 it was given only upon condition of allowing a passage to the [ 260 ] 
 garden. The same mode of interpretation is to be adopted, 
 whenever a case occurs, in which the law or the treaty, if in- 
 terpreted according to the strict meaning of the terms, would 
 lead to something unlawful. On such an occasion, the case 
 in question is to be excepted, since nobody can ordain or 
 promise what is unlawful. For this reason, though assist- 
 ance has been promised to an ally in all his wars, no assist- 
 ance ought to be given him when he undertakes one that is 
 manifestly unjust. 
 
 When a case arises in which it would be too severe and too 
 
 * lab. iv. Declam. xxvii. 
 
 359
 
 260 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK ii. prejudicial to any one to interpret a law or a promise accord- 
 CHAP. XYH. j n g to the rigour of the terms, a restrictive interpretation 
 294. Or is then also used, and we except the case in question, agree- 
 what is too a bly to the intention of the legislature, or of him who made 
 burden*"" 1 *^ e P rom ^ se : f r * ne legislature intends only what is just 
 *om~ and equitable ; and, in contracts, no one can enter into such 
 engagements in favour of another, as shall essentially super- 
 sede the duty he owes to himself. It is then presumed with 
 reason, that neither the legislature nor the contracting parties 
 have intended to extend their regulations to cases of this 
 nature, and that they themselves, if personally present, would 
 except them. A prince is no longer obliged to send succours 
 to his allies, when he himself is attacked, and has need of all 
 his forces for his own defence. He may also, without the 
 slightest imputation of perfidy, abandon an alliance, when, 
 through the ill success of the war, he sees his state threatened 
 with impending ruin if he does not immediately treat with 
 the enemy. Thus, towards the end of the last century, Victor 
 Amadeus, duke of Savoy, found himself under the necessity 
 of separating from his allies, and of receiving law from France, 
 to avoid losing his states. The king his son would have had 
 good reasons to justify a separate peace in the year 1745 ; 
 but upheld by his courage, and animated by just views of his 
 true interest, he embraced the generous resolution to struggle 
 against an extremity which might have dispensed with his 
 persisting in his engagements. 
 
 295. How We have said above ( 280), that we should take the ex- 
 it ought to preggiong j n the sense that agrees with the subject or the 
 signification ma tter. Restrictive interpretation is also directed by this 
 agreeably to rule. If the subject or the matter treated of will not allow 
 the subject, that the terms of a clause should be taken in their full extent, 
 we should limit the sense according as the subject requires. 
 Let us suppose that the custom of a particular country con- 
 fines the entail of fiefs to the male line properly so called : 
 if an act of enfeoffment in that country declares that the fief 
 is given to a person for himself and his male descendants, 
 the sense of these last words must be restricted to the males 
 descending from males ; for the subject will not admit of our 
 understanding them also of males who are the issue of females, 
 though they are reckoned among the male descendants of the 
 first possessor. 
 
 g 296. How The following question has been proposed and debated : 
 & change Whether promises include a tacit condition of the state of 
 fntheTtate a ^ rs continuing the same, or whether a change happen- 
 of things i n g m the state of affairs can create an exception to the pro- 
 may form mise, and even render it void ?" The principle derived from 
 an excep- the reason of the promise must solve the question. If it be 
 tion * certain and manifest that the consideration of the present 
 
 state of things was one of the reasons which occasioned the 
 promise, that the promise was made in consideration or in
 
 OF THE INTERPRETATION OF TREATIES. 261 
 
 consequence of that state of things, it depends on the pre- BOOK n. 
 servation of things in the same state. This is evident, since CHAr - xvn - 
 the promise was made only upon that supposition. When 
 therefore that state of things which was essential to the pro- 
 mise, and without which it certainly would not have been 
 made, happens to be changed, the promise falls to the ground 
 when its foundation fails. And in particular cases, where 
 things cease for a time to be in the state that has produced 
 or concurred to produce the promise, an exception is to be 
 made to it. An elective prince, being without issue, has pro- 
 mised to an ally that he will procure his appointment to the 
 succession. He has a son born : who can doubt that the pro- 
 mise is made void by this event ? He who in a time of peace 
 has promised succours to an ally, is not bound to give him 
 any when he himself has need of all his forces for the de- 
 fence of his own dominions. A prince, possessed of no very 
 formidable power, has received from his allies a promise of 
 faithful and constant assistance, in order to his aggran- 
 dizement, in order to enable him to obtain a neighbouring 
 state by election or by marriage : yet those allies will have 
 just grounds for refusing him the smallest aid or support, 
 and even forming an alliance against him, when they see him 
 elevated to such a height of power as to threaten the liberties 
 of all Europe. If the great Gustavus had not been killed at 
 Lutzen, cardinal de Richelieu, who had concluded an alliance 
 for his master with that prince, and who had invited him into 
 Germany, and assisted him with money, would perhaps have 
 found himself obliged to traverse the designs of that conqueror, 
 when become formidable, to set bounds to his astonishing 
 progress, and to support his humbled enemies. The states- 
 general of the United Provinces conducted themselves on 
 these principles in 1668. In favour of Spain, which before 
 had been their mortal enemy, they formed the triple alliance 
 against Louis XIV. their former ally. It was necessary to 
 raise a barrier to check the progress of a power which threat- 
 ened to inundate and overwhelm all before it. 
 
 But we ought to be very cautious and moderate in the ap- 
 plication of the present rule : it would be a shameful perver- 
 sion of it, to take advantage of every change that happens 
 in the state of affairs, in order to disengage ourselves from 
 our promises : were such conduct adopted, there could be no 
 dependence placed on any promise whatever. That state of 
 things alone, in consideration of which the promise was made, 
 is essential to the promise : and it is only by a change in that 
 state, that the effect of the promise can be lawfully prevented [ 262 ] 
 or suspended. Such is the sense in which we are to under- 
 stand that maxim of the civilians, conventio omnis intelligitur 
 rebus sic stantibus. 
 
 What we say of promises, must also be understood as ex- 
 tending to laws. A law which relates to a certain situation 
 
 43 2 F 361
 
 262 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK ii. of affairs can only take place in that situation. We ought to 
 
 CHAP. XYII. reason in the same manner with respect to a commission. 
 
 Thus, Titus being sent by his father to pay his respects to 
 
 the emperor, turned back on being informed of the death of 
 
 Galba. 
 
 297. In- In unforeseen cases, that is to say, when the state of things 
 terpretation happens to be such as the author of a deed has not foreseen, 
 of a deed m an( j C0ll [ft not nave thought of\ we should rather be guided by 
 unforeseen 7- .... ,7 IT- 7 i j. * 1 
 
 cases. nis intention than by his words, and interpret the instrument 
 
 as he himself would interpret it if he were on the spot, or 
 conformably to what he would have done if he had foreseen 
 the circumstances which are at present known. This rule is 
 of great use to judges, and to all those in society who are 
 appointed to carry into effect the testamentary regulations 
 of the citizens. A father appoints by will a guardian for his 
 children, who are under age. After his death the magistrate 
 finds that the guardian he has nominated is an extravagant 
 profligate, without property or conduct : he therefore dis- 
 misses him, and appoints another, according to the Roman 
 laws,* adhering to the intention of the testator, and not to 
 his words ; for it is but reasonable to suppose, and we are 
 to presume it as a fact, that the father never intended to 
 give his children a guardian who should ruin them, and that 
 he would have nominated another, had he known the vices of 
 the person he appointed. 
 
 298. Rea- When the things which constitute the reason of a law or 
 sons arising convention are considered, not as actually existing^, but simply 
 lossibHit as P 08S ible, or, in other words, when the fear of an event is 
 ancTnot'the the reason of a law or a promise, no other cases can be ex- 
 existence of cepted from it than those in which it can be proved to demon- 
 a thing. stration that the event is really impossible. The bare possi- 
 bility of the event is sufficient to preclude all exceptions. If, 
 for instance, a treaty declares that no army or fleet shall be 
 conducted to a certain place, it will not be allowable to conduct 
 thither an army or a fleet, under pretence that no harm is in- 
 tended by such a step : for the object of a clause of this nature 
 is not only to prevent a real evil, but also to keep all danger 
 at a distance, and to avoid even the slightest subject of un- 
 easiness. It is the same with the law which forbids walking 
 the streets by night with a lighted torch or candle. It would 
 be an unavailing plea for the transgression of that law to 
 allege that no mischief has ensued, and that he carried his 
 torch with such circumspection that no ill consequence was 
 to be apprehended. The bare possibility of causing a confla- 
 [ 263 ] gration was sufficient to have rendered it his duty to obey the 
 law ; and he has transgressed it by exciting fears which it 
 was the intention of the legislature to prevent. 
 299. Ex- At the beginning of this chapter, we observed that men's 
 
 * Digest, lib. xxvi. tit. iii. De Confirm. Tutor, leg. 10. 
 362
 
 OF THE INTERPRETATION OF TREATIES. 263 
 
 ideas and language are not always perfectly determinate. BOOK n. 
 There is, doubtless, no language in which there do not occur CHAP.XVII. 
 expressions, words, or entire phrases, susceptible of a more or capable of 
 less extensive signification. Many a word is equally appli- anexte . ns i ve 
 cable to the genus or the species : the word fault implies ^J^ 1 1 *" 
 intentional guilt or simple error : several species of animals 
 have but one name common to both sexes, as partridge, lark, 
 sparrow, &c. ; when we speak of horses, merely with a view 
 to the services they render to mankind, mares also are com- 
 prehended under that name. In technical language a word 
 has sometimes a more and sometimes a less extensive sense, 
 than in vulgar use : the word death, among civilians, signifies 
 not only natural death, but also civil death : verbum, in the 
 Latin grammar, signifies only that part of speech called the 
 verb; but, in common use, it signifies any word in general. 
 Frequently, also, the same phrase implies more things on one 
 occasion, and fewer on another, according to the nature of 
 the subject or matter: thus, when we talk of sending suc- 
 cours, sometimes we understand a body of auxiliary troops 
 maintained and paid by the party who sends them, at other 
 times a body whose expenses are to be entirely defrayed by 
 the party who receives them. It is therefore necessary to 
 establish rules for the interpretation of those indeterminate 
 expressions, in order to ascertain the cases in which they are 
 to be understood in the more extensive sense, and those in 
 which they are to be restricted to their more limited meaning. 
 Many of the rules we have already given may serve for this 
 purpose. 
 
 But it is to this head that the famous distinction, between 300. Of 
 things of & favourable and those of an odious nature, particu- tnin s s fe - 
 larly belongs. Some writers have rejected the distinction,*^^' 
 doubtless for want of properly understanding it. In fact, odious, 
 the definitions that have been given of what is favourable and 
 what is odious, are not fully satisfactory, nor easily applied. 
 After having maturely considered what the most judicious 
 authors have written on the subject, I conceive the whole of 
 the question to be reducible to the following positions, which 
 convey a just idea of that famous distinction. When the N 
 provisions of a law or a convention are plain, clear, determi- 
 nate, and attended with no doubt or difficulty in the applica- 
 tion, there is no room for any interpretation or comment (263). 
 The precise point of the will of the legislature or the con- 
 tracting parties, is what we must adhere to. But if their ex- 
 pressions are indeterminate, vague, or susceptible of a more 
 or less extensive sense, if that precise point of their inten- 
 tion cannot, in the particular case in question, be discovered 
 and fixed by the other rules of interpretation, we must pre- 
 sume it according to the laws of reason and equity : and, for 
 
 * See Barbeyrac's remarks on Grotius and Puffendorf. 
 
 363
 
 264 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. this purpose, it is necessary to pay attention to the nature of 
 CHAP. XYII. th e things to which the question relates. There are certain 
 things of which equity admits the extension, rather than the 
 restriction ; that is to say, that, with respect to those things, 
 the precise point of the will not being discovered in the ex- 
 pressions of the law or the contract, it is safer atd more con- 
 sistent with equity, to suppose and fix that point in the more 
 extensive, than in the more limited sense of the terms ; to 
 give a latitude to the meaning of the expressions, than to 
 restrict it. These are the things called favourable. Odious 
 things, on the other hand, are those, of which the restriction 
 tends more certainly to equity than the extension. Let us 
 figure to ourselves the intention or the will of the legislature 
 or the contracting parties, as a fixed point. At that point 
 precisely should we stop, if it be clearly known ; if uncer- 
 tain, we should at least endeavour to approach it. In things 
 favourable, it is better to pass beyond that point, than not tc 
 reach it ; in things odious, it is better not to reach it, than to 
 pass beyond it. 
 
 301. What it w in no t now be difficult to show, in general, what things 
 common'ad- are f avoura ble, an( i what are odious. In the first place, evert/ 
 vantage.and thing that tends to the common advantage in conventions, or 
 to equality, that has a tendency to place the contracting parties on a foot- 
 is favour- j n g O f equality, is favourable. The voice of equity, and the 
 contra is g enera l ru ^ e f contracts, require that the conditions between 
 odious. the parties should be equal. We are not to presume, without 
 very strong reasons, that one of the contracting parties in- 
 tended to favour the other to his own prejudice ; but there is 
 no danger in extending what is for the common advantage. 
 If, therefore, it happens that the contracting parties have not 
 made known their will with sufficient clearness, and with all 
 the necessary precision, it is certainly more conformable to 
 equity to seek for that will in the sense most favourable to 
 equality and the common advantage, than to suppose it in the 
 contrary sense. For the same reason, every thing that is not 
 for the common advantage, every thing that tends to destroy 
 the equality of a contract, every thing that onerates only one 
 of the parties, or that onerates the one more than the other, is 
 odious. In a treaty of strict friendship, union, and alliance, 
 every thing which, without being burdensome to any of the 
 parties, tends to the common advantage of the confederacy, 
 and to draw the bonds of union closer, is favourable. In 
 unequal treaties, and especially in unequal alliances, all the 
 clauses of inequality, and principally those that onerate the 
 inferior ally, are odious. Upon this principle, that we ought 
 in case of doubt to extend what leads to equality, and restrict 
 what destroys it, is founded that well-known rule Incom- 
 moda vitantis melior quam commoda petentis est causa,* 
 
 * Quintilun, Instit. Orai. lib. vii. cap. iv.
 
 OF THE INTERPRETATION OP TREATIES. 264 
 
 the party who endeavours to avoid a loss has a better cause to BOOK u. 
 support than he who aims at obtaining an advantage. CHAP, xvn. 
 
 All those things which, without proving too burdensome to 302. What 
 any one in particular, are useful and salutary to human so- is useful to 
 ciety, are to be ranked in the class of favourable things : for a ^ ai j s 8 ^ 
 nation is already under a natural obligation with respect to v^urabL *" 
 things of this nature : so that if she has entered into any the contrary 
 particular engagements of this kind, we run no risk in giving is odious, 
 those engagements the most extensive meaning of which they [ 265 ] 
 are susceptible. Can we be afraid of violating the rules of 
 equity by following the law of nature, and giving the utmost 
 extent to obligations that tend to the common advantage of 
 mankind ? Besides, things which are useful to human society 
 are, from that very circumstance, conducive to the common 
 advantage of the contracting parties, and are consequently 
 favourable (see the preceding section). On the other hand, 
 let us consider as odious every thing that is, in its own nature, 
 rather injurious than useful to mankind. Those things which 
 have a tendency to promote peace are favourable ; those that 
 lead to war are odious. 
 
 Every thing that contains a penalty, is odious. With re- 303. What- 
 spect to the laws, it is universally agreed, that, in case of ev . er con- 
 doubt, the judge ought to incline to the merciful side, and ^" s ^J 6 " 
 that it is indisputably better to suffer a guilty person to escape, odious! 8 
 than to punish one who is innocent. Penal clauses in trea- 
 ties lay a burden upon one of the parties ; they are there- 
 fore odious ( 301). 
 
 Whatever tends to render a deed void and ineffectual, either 304. 
 in the whole, or in part, and consequently, whatever introduces Whatever 
 any change in things already agreed upon, is odious : for J^Jj^J is 
 men treat together with a view to their common benefit ; and odious, 
 if I enjoy any particular advantage acquired by a lawful con- 
 tract, I must not be deprived of it except by my own renun- 
 ciation. When, therefore, I consent to new clauses that seem 
 to derogate from it, I can lose my right only so far as I have 
 clearly given it up ; and consequently these new clauses are 
 to be understood in the most limited sense they will admit 
 of; as is the case in things of an odious nature ( 300). If 
 that which tends to render a deed void and ineffectual is con- 
 tained in the deed itself, it is evident that such passages 
 ought to be construed in the most limited sense, in the sense 
 best calculated to preserve the deed in force. We have al- 
 ready seen, that we should reject every interpretation which 
 tends to render a deed void and ineffectual ( 283). 
 
 Whatever tends to change the present state of things is 305. 
 also to be ranked in the class of odious things : for the pro- Whatever 
 prietor cannot be deprived of his right, except so far, pre- H J ^ ft 
 cisely, as he relinquishes it on his part ; and, in case of doubt, p rese nt state 
 the presumption is in favour of the possessor. It is less re- of things, is 
 pugnant to equity to withhold from the owner a possession odious ; the 
 
 2 F 2 365
 
 265 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK ii. which he has lost through his own neglect, than to strip the 
 CHAP. XTII. just possessor of what lawfully belongs to him. In the inter- 
 contrary is pretation, therefore, we ought rather to hazard the former in- 
 favourable, convenience than the latter. Here also may be applied, in 
 many cases, the rule we have mentioned in 301, that the 
 party who endeavours to avoid a loss, has a better cause to 
 support than he who aims at obtaining an advantage. 
 306. Finally, there are things which are at once of a favourable 
 
 Things of a or an odious nature, according to the point of view in which 
 mixed na- they are considered. Whatever derogates from treaties, or 
 t " re ' changes the state of things, is odious ; but if it is conducive 
 
 L ^vv J ^ Q p eac6) j t j Sj j n that particular, favourable. A degree of 
 odium always attaches to penalties : they may, however, be 
 viewed in a favourable light on those occasions when they are 
 particularly necessary for the safety of society. When there 
 is question of interpreting things of this nature, we ought to 
 consider whether what is favourable in them greatly exceeds 
 what appears odious, whether the advantage that arises from 
 their being extended to the utmost latitude of which the terms 
 are susceptible, will materially outweigh the severe and odious 
 circumstances attending them ; and if that is the case, they 
 are to be ranked in the class of favourable things. Thus, an 
 inconsiderable change in the state of things, or in conven- 
 tions, is reckoned as nothing, when it procures the inesti- 
 mable blessings of peace. In the same manner, penal laws 
 may be interpreted in their most extensive meaning, on cri- 
 tical occasions, when such an instance of severity becomes 
 necessary to the safety of the state. Cicero caused the ac- 
 complices of Catiline to be executed by virtue of a decree of 
 the senate, the safety of the republic rendering it improper 
 to wait till they should be condemned by the people. But 
 where there is not so great a disproportion in the case, and 
 where things are in other respects equal, favour inclines to 
 that side of the question which presents nothing odious ; 
 that is to say, we ought to abstain from things of an odious 
 nature, unless the attendant advantage so far exceed the odi- 
 ous part as in a manner to conceal it from view. If there 
 be any appearance, however small, of an equilibrium between 
 the odious and the favourable in one of those things of a 
 mixed nature, it is ranked in the class of odious things, by a 
 natural consequence drawn from the principle on which we 
 have founded the distinction between things of a favourable 
 and things of an odious nature ( 300), because, in case of 
 doubt, we should, in preference, pursue that line of conduct 
 by which we are least exposed to deviate from the principles 
 of equity. In a doubtful case, we may reasonably refuse to 
 give succours (though a thing favourable), when there is ques- 
 tion of giving them against an ally, which would be odious. 
 The following are the rules of interpretation, which flow 
 from the principles we have just laid down.
 
 OP THE INTERPKETATION OF TREATIES. 266 
 
 1. When the question relates to things favourable, we ought BOOK n. 
 to give the terms the utmost latitude of which they are suscep- CHAP, xvn. 
 tible according to the common usage of the language ; and if a 307. Inter- 
 term has more than one signification, the most extensive mean- pretation of 
 ing is to be preferred : for equity ought to be the rule of con- fa y ourable 
 duct with all mankind wherever a perfect right is not exactly * mgs ' 
 determined and known in its precise extent. When the legis- 
 lature or the contracting parties have not expressed their will 
 
 in terms that are precise and perfectly determinate, it is to be 
 presumed that they intended what is most equitable. Now, [ 267 ] 
 when there is question of favourable things, the more exten- 
 sive signification of the terms accords better with equity than 
 the more confined signification. Thus Cicero, in pleading 
 the cause of Caecina, justly maintains that the interlocutory 
 decree, ordaining, " that the person expelled from his inhe- 
 ritance be reinstated in the possession," should be understood 
 as extending to the man who has been forcibly prevented from 
 entering upon it :* and the Digest decides it in the same 
 manner, f It is true that this decision is also founded on the 
 rule taken from parity of reasoning ( 290). For it amounts 
 to the same thing in effect, to drive a person from his inhe- 
 ritance, or forcibly to prevent him from entering upon it; 
 and, in both cases, the same reason exists for putting him in 
 possession. 
 
 2. In questions relating to favourable things, all terms of 
 art. are to be interpreted in the fullest latitude of which they 
 are susceptible, not only in common usage, but also as tech- 
 nical terms, if the person speaking understands the art to 
 which those terms belong, or conducts himself by the advice 
 of men who understand that art. 
 
 3. But we ought not, from the single reason that a thing 
 is favourable, to take the terms in an improper signification : 
 this is not allowable, except when necessary in order to avoid 
 absurdity, injustice, or the nullity, of the instrument, as is 
 practised on every subject ( 282, 283) : for we ought to 
 take the terms of a deed in their proper sense, conformably 
 to custom, unless we have very strong reasons for deviating 
 from it ( 271). 
 
 4. Though a thing appears favourable when viewed in 
 one particular light, yet, where the proper meaning of the 
 terms would, if taken in its utmost latitude, lead to absurdity 
 or injustice, their signification must be restricted according 
 to the rules given above ( 293, 294). For here, in this par- 
 ticular case, the thing becomes of a mixed nature, and even 
 such as ought to be ranked in the class of odious things. 
 
 5. For the same reason, although neither absurdity nor 
 injustice results from the proper meaning of the terms, if, 
 
 * Orat. pro Csecina, cap. xxiii. 
 
 t Digest, lib. xliii. tit. xvi. D e Vi, et Vi Armata, legg. 1 et 3. 
 
 367
 
 267 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK ii. nevertheless, manifest equity or a great common advantage 
 CHAP, xvn. re g u j res th e i r restriction, ive ought to adhere to the most li- 
 mited sense which the proper signification will admit, even in 
 an affair that appears favourable in its own nature, because 
 here also the thing is of a mixed kind, and ought, in this 
 particular case, to be esteemed odious. As to the rest, it is 
 to be carefully remembered that all these rules relate only to 
 doubtful cases ; since we are not allowed to go in quest of 
 interpretations for what is already clear and determinate 
 ( 263). If any one has clearly and formally bound him- 
 self to burdensome conditions, he has knowingly and will- 
 ingly done it, and cannot afterwards be admitted to appeal to 
 equity. 
 
 g 308. In- Since odious things are those whose restriction tends more 
 terpretation cer tainly to equity than their extension, and since we ought 
 thinS" 18 to P ursue tnat li ne which is most conformable to equity, when 
 f 268 1 * ne will f the legislature or of the contracting parties is not 
 exactly determined and precisely known, we should, when 
 there is question of odious things, interpret the terms in the 
 most limited sense: we may even to a certain degree adopt 
 a figurative meaning, in order to avert the oppressive conse- 
 quences of the proper and literal sense, or any thing of an 
 odious nature, which it would involve : for we are to favour 
 equity, and to do away every thing odious, as far as that can 
 be accomplished, without going in direct opposition to the 
 tenor of the instrument, or visibly wresting the text. Now, 
 neither the limited nor even the figurative sense offers any 
 violence to the text. If it is said in a treaty, that one of the 
 allies shall assist the other with a certain number of troops 
 at his own expense, and that the latter shall furnish the same 
 number of auxiliary troops at the expense of the party to 
 whom they are sent, there is something odious in the engage- 
 ment of the former ally, since he is subject to a greater bur- 
 den than the other : but the terms being clear and express, 
 there is no room for any restrictive interpretation. But if it 
 were stipulated in this treaty, that one of the allies shall fur- 
 nish a body of ten thousand men, and the other only of five 
 thousand, without mentioning the expense, it ought to be un- 
 derstood that the auxiliary troops shall be supported at the 
 expense of the ally to whose assistance they are sent ; this 
 interpretation being necessary, in order that the inequality 
 between the contracting powers may not be carried too far. 
 Thus, the cession of a right, or of a province, made to a con- 
 queror in order to obtain peace, is interpreted in its most 
 confined sense. If it be true that the boundaries of Acadia 
 have always been uncertain, and that the French were the 
 lawful possessors of it, that nation will be justified in main- 
 taining that their cession of Acadia to the English, by the 
 treaty of Utrecht, did not extend beyond the narrowest limits 
 of that province. 
 
 3G3
 
 OF THE INTERPRETATION OF TREATIES. 268 
 
 In point of penalties, in particular, when they are really BOOK H. 
 odious, we ought not only to restrict the terms of the law, or CHAP - * TU - 
 of the contract, to their most limited signification, and even 
 adopt a figurative meaning, according as the case may require 
 or authorize it, but also to admit of reasonable excuses; 
 which is a kind of restrictive interpretation, tending to exempt 
 the party from the penalty. 
 
 The same conduct must be observed with respect to what 
 may render an act void and without effect. Thus, when it is 
 agreed that the treaty shall be dissolved whenever one of the 
 contracting parties fails in the observance of any article of it, 
 it would be at once both unreasonable and contrary to the 
 end proposed in making treaties, to extend that clause to the 
 slightest faults, and to cases in which the defaulter can allege 
 well-grounded excuses. 
 
 Grotius proposes the following question " Whether in a 309. 
 treaty which makes mention of allies, we are to understand Examples, 
 those only who were in alliance at the time when the treaty [ 269 ] 
 was made, or all the allies present and future ?"* And he 
 gives, as an instance, that article of the treaty concluded be- 
 tween the Romans and Carthaginians, after the war of Sicily, 
 that, " neither of the two nations should do any injury to 
 the allies of the other." In order to understand this part 
 of the treaty, it is necessary to call to mind the barbarous 
 law of nations observed by those ancient people. They thought 
 themselves authorized to attack, and to treat as enemies, all 
 with whom they were not united by any alliance. The article 
 therefore signifies, that on both sides they should treat as 
 friends the allies of their ally, and abstain from molesting or 
 invading them : upon this footing it is in all respects so favour- 
 able, so conformable to humanity, and to the sentiments which 
 ought to unite two allies, that it should, without hesitation, 
 be extended to all the allies, present and future. The clause 
 cannot be said to involve any thing of an odious nature, as 
 cramping the freedom of a sovereign state, or tending to dis- 
 solve an alliance : for, by engaging not to injure the allies 
 of another power, we do not deprive ourselves of the liberty 
 to make war on them if they give us just case for hostilities ; 
 and when a clause is just and reasonable, it does not become 
 odious from the single circumstance that it may perhaps 
 eventually occasion a rupture of the alliance. Were that to 
 be the case, there could be no clause whatever that might 
 not be deemed odious. This reason, which we have touched 
 upon in the preceding section and in 304, holds good only 
 in doubtful cases ; in the case before us, for instance, it ought 
 to have prevented too hasty a decision that the Carthaginians 
 had causelessly attacked an ally of the Romans. The Car- 
 thaginians, therefore, might, without any violation of the 
 
 * Lib. ii. cap. xvi. 13. 
 47 369
 
 269 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. treaty, attack Saguntum, if they had lawful grounds for such 
 CHAP. XYII. an attack, or (in virtue of the voluntary law of nations) even 
 apparent or specious grounds (Prelim. 21). But they might 
 have attacked in the same manner the most ancient ally of the 
 Romans ; and the Romans might also, without breaking the 
 treaty of peace, have confined themselves to the succouring 
 of Saguntum. At present, treaties include the allies on both 
 sides : but this does not imply that one of the contracting 
 powers may not make war on the allies of the other if they 
 give him cause for it but simply, that, in case of any quar- 
 rel arising between them, each of the contracting parties re- 
 serves to himself a power of assisting his more ancient ally : 
 and, in this sense, the future allies are not included in the 
 treaty. 
 
 Another example mentioned by Grotius is also taken from 
 a treaty concluded between Rome and Carthage. When the 
 latter city was reduced to extremities by Scipio JEmilianus, 
 and obliged to capitulate, the Romans promised "that Car- 
 thage should remain free, or in possession of the privilege of 
 governing herself by her own laws."* In the sequel, how- 
 ever, these merciless conquerors pretended that the promised 
 liberty regarded the inhabitants, and not the city : they in- 
 sisted that Carthage should be demolished, and that the 
 wretched inhabitants should settle in a place at a greater dis- 
 tance from the sea. One cannot read the account of this per- 
 fidious and cruel treatment, without being concerned that the 
 great, the amiable Scipio was obliged to be the instrument 
 [ 270 ] of it. To say nothing of the chicanery of the Romans respect- 
 ing the meaning to be annexed to the word " Carthage," 
 certainly, the "liberty" promised to the Carthaginians, though 
 narrowly circumscribed by the existing state of affairs, should 
 at least have extended to the privilege of remaining in their 
 city. To find themselves obliged to abandon it and settle 
 elsewhere, to lose their houses, their port, and the advan- 
 tages of their situation, was a subjection incompatible with 
 the smallest degree of liberty, and involved such considerable 
 losses as they could not have bound themselves to submit to, 
 unless by a positive engagement in the most express and 
 formal terms. 
 
 g 310. How Liberal promises, benefactions, and rewards naturally come 
 we ought to under the class of favourable things,and receive an extensive in- 
 interpret terpretation, unless they prove onerous or unreasonably charge- 
 able to the benefactor, or that other circumstances evidently 
 show they are to be taken in a limited sense. For kindness, 
 benevolence, beneficence, and generosity are liberal virtues ; 
 they do not act in a penurious manner, and know no other 
 bounds than those set by reason. But if the benefaction falls 
 too heavy upon him who grants it, in this respect it partakes 
 
 AUTOVO//OJ. Appian. de Bello Punico. 
 *70
 
 Or THE INTERPKETATION OF TREATIES. 270 
 
 of the odious ; and, in case of doubt, equity will not admit BOOK n. 
 the presumption that it has been granted or promised in the CHAP - XYIT - 
 utmost extent of the terms : we ought therefore, in such case, 
 to confine ourselves to the most limited signification which the 
 words are capable of receiving, and thus reduce the bene- 
 faction within the bounds of reason. The same mode should 
 be adopted when other circumstances evidently point the 
 more limited signification as the more equitable. 
 
 Upon these principles, the bounties of a sovereign are 
 usually taken in the fullest extent of the terms.* It is not 
 presumed that he finds himself over-burdened by them ; it is 
 a respect due to majesty, to suppose that he had good 
 reasons to induce him to confer them. They are therefore, 
 in their own nature, altogether favourable ; and, in order to 
 restrict them, it must be proved that they are burdensome to 
 the prince, or prejudicial to the state. On the whole, we 
 ought to apply to deeds of pure liberality the general rule 
 established above ( 270) ; if those instruments are not pre- 
 cise and very determinate, they should be interpreted as 
 meaning what the author probably had in his mind. [ 271 ] 
 
 Let us conclude this subject of interpretation with what g 311. Coi- 
 relates to the collision or opposition of laws or treaties. We 1 """"* 1 """ 
 do not here speak of the collision of a treaty with the law of or treaties - 
 nature : the latter is unquestionably paramount, as we have 
 proved elsewhere ( 160, 161, 170, and 293). There is a 
 collision or opposition between two laws, two promises, or two 
 treaties, when a case occurs in which it is impossible to fulfil 
 both at the same time, though otherwise the laws or treaties 
 in question are not contradictory, and may be both fulfilled 
 under different circumstances. They are considered as con- 
 trary in this particular case ; and it is required to show which 
 deserves the preference, or to which an exception ought to 
 be made on the occasion. In order to guard against all mis- 
 take in the business, and to make the exception conformably 
 to reason and justice, we should observe the following rules : 
 
 1. In all cases where what is barely permitted is found in- $ 312. First 
 compatible with what is positively prescribed, the latter claims rule in case 
 a preference : for the mere permission imposes no obligatk 
 to do or not to do : what is permitted is left to our own option 
 we are at liberty either to do it or to forbear to do it. But 
 we have not the same liberty with respect to what is pre- 
 scribed : we are obliged to do that : nor can the bare per- 
 mission in the former case interfere with the discharge of our 
 obligation in the latter ; but, on the contrary, that which 
 was before permitted in general, ceases to be so in this par- 
 
 * Such is the decision of the Roman for it : " quod a divina ejus indulgentia 
 
 law. Javolenus says : " Beneficium proficiscatur." Digest, lib. i. tit. iv. de 
 
 imperatoris quam plenissime interpre- Constit. Princ. leg. 3. 
 tari debemus ;" and he gives this reason 
 
 371
 
 271 
 
 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK ii. ticular instance, where we cannot take advantage of the per- 
 CHAP. XYII. m i ss j on -without violating a positive duty. 
 I 313. 2d 2. In the same manner, the law or treaty which permits, 
 Rule - ought to give way to the law or treaty which forbids : for the 
 prohibition must be obeyed ; and what was, in its own nature, 
 or in general, permitted, must not be attempted when it can- 
 not be done without contravening a prohibition : the permis- 
 sion, in that case, ceases to be available. 
 
 g 314. 3d 3. All circumstances being otherwise equal, the law or the 
 Rule. treaty which ordains, gives way to the law or the treaty which 
 forbids. I say, "all circumstances being otherwise equal;" 
 for many other reasons may occur, which will authorize the 
 exception being made to the prohibitory law or treaty. The 
 rules are general ; each relates to an abstract idea, and shows 
 what follows from that idea, without derogation to the other 
 rules. Upon this footing, it is evident that, in general, if we 
 cannot obey an injunctive law without violating a prohibitory 
 one, we should abstain from fulfilling the former : for the pro- 
 hibition is absolute in itself, whereas every precept, every 
 injunction, is in its own nature conditional, and supposes the 
 power, or a favourable opportunity, of doing what is pre- 
 scribed. Now when that cannot be accomplished without 
 contravening a prohibition, the opportunity is wanting, and 
 this collision of laws produces a moral impossibility of acting ; 
 for what is prescribed in general, is no longer so in the case 
 [ 272 ] where it cannot be done without committing an action .that 
 is forbidden.* Upon this ground rests the generally received 
 maxim that we are not justifiable in employing unlawful means 
 to accomplish a laudable end, as, for instance, in stealing 
 with a view to give alms. But it is evident that the question 
 here regards an absolute prohibition, or those cases to which 
 the general prohibition is truly applicable, and therefore equi- 
 valent to an absolute one : there are, however, many prohi- 
 bitions to which circumstances form an exception. Our mean- 
 ing will be better explained by an example. It is expressly 
 forbidden, for reasons to me unknown, to pass through a cer- 
 tain place under any pretence whatsoever. I am ordered to 
 carry a message ; I find every other avenue shut ; I there- 
 fore turn back rather than take my passage over that ground 
 which is so strictly forbidden. But if the prohibition - to pass 
 be only a general one, with a view to prevent any injury being 
 done to the productions of the soil, it is easy for me to judge 
 that the orders with which I am charged ought to form an 
 exception. 
 
 As to what relates to treaties, we are not obliged to ac- 
 complish what a treaty prescribes, any farther than we have 
 
 * The prohibitory law creates, in that vetat, quasi exceptione quadam, cor- 
 particular instance, an exception to the rigere videtur illam quse jubet." Ci- 
 injunctive law. "Deinde utra lex cero, de Inventione, lib. ii. 145. 
 iubeat, utra vetet. Nam ssepe ea quae 
 372
 
 OF THE INTERPRETATION OF TREATIES. 272 
 
 the power. Now, we have not a power to do what another BOOK n. 
 treaty forbids : wherefore, in case of collision, an exception CHAP - XYU - 
 is made to the injunctive treaty, and the prohibitory treaty 
 has a superior claim to our observance, provided, however, 
 that all circumstances be in other respects equal ; for it will 
 presently appear, for instance, that a subsequent treaty can- 
 not derogate from a prior one concluded with another state, 
 nor hinder its effect directly or indirectly. 
 
 4. The dates of laws or treaties furnish new reasons for g 315. 4th 
 establishing the exception in cases of collision. If the c0Z- Rule - 
 lision happen between two affirmative laws, or two affirmative * 
 treaties concluded between the same persons or the same states, 
 
 that which is of more recent date claims a preference over 
 the older one : for it is evident, that since both laws or both 
 treaties have emanated from the same power, the subsequent 
 act was capable of derogating from the former. But still this 
 is on the supposition of circumstances being in other respects 
 equal. If there be a collision between two treaties made with 
 tivo different powers, the more ancient claims the preference : 
 for no engagement of a contrary tenor could be contracted 
 in the subsequent treaty ; and if this latter be found, in any 
 case, incompatible with that of more ancient date, its execu- 
 tion is considered as impossible, because the person promis- 
 ing had not the power of acting contrary to his antecedent 
 engagements. 
 
 5. Of two laws or two conventions, we ought (all other cir- $ 316. 5th 
 cumstances being equal) to prefer the one which is less general, Rie. 
 and which approaches nearer to the point in question : be- 
 cause special matter admits of fewer exceptions than that [ 273 ] 
 which is general ; it is enjoined with greater precision, and 
 appears to have been more pointedly intended. Let us make 
 
 use of the following example from Puffendorf :* One law 
 forbids us to appear in public with arms on holidays ; another 
 law commands us to turn out under arms, and repair to our 
 posts, as soon as we hear the sound of the alarm-bell. The 
 alarm is rung on a holiday. In such case we must obey the 
 latter of the two laws, which creates an exception to the 
 former. 
 
 6. What will not admit of delay, is to be preferred to what $ 317. eth 
 may be done at another time. For this is the mode to recon- Rule, 
 cile every thing, and fulfil both obligations ; whereas, if we 
 
 gave the preference to the one which might be fulfilled at an- 
 other time, we would unnecessarily reduce ourselves to the 
 alternative of failing in our observance of the other. 
 
 7. When two duties stand in competition, that one which is % 318. 7th 
 the more considerable, the more praiseworthy, and productive Rule - 
 
 of the greater utility, is entitled to the preference. This rule 
 has no need of proof. But as it relates to duties that are 
 
 * Jus Gent. lib. y. cap. xii. 23. 
 
 2G 373
 
 273 OF THE INTERPRETATION OF TREATIES. 
 
 BOOK n. equally in our power, and, as it were, at our option, we should 
 CHAP, xvn. care f u ii v guard against the erroneous application of it to two 
 duties which do not really stand in competition, but of which 
 the one absolutely precludes the other, our obligation to 
 fulfil the former wholly depriving us of the liberty to perform 
 the latter. For instance, it is a more praiseworthy deed to 
 defend one nation against an ..unjust aggressor, than to assist 
 another in an offensive war. But, if the latter be the more 
 ancient ally, we are not at liberty to refuse her our assist- 
 ance and give it to the former ; for we stand pre-engaged. 
 There is not, strictly speaking, any competition between these 
 two duties : they do not lie at our option : the prior engage- 
 ment renders the second duty, for the present, impracticable. 
 However, if there were question of preserving a new ally from 
 certain ruin, and that the more ancient ally were not reduced 
 to the same extremity, this would be the case to which the 
 foregoing rule should be applied. 
 
 As to what relates to laws in particular, the preference is 
 undoubtedly to be given to the more important and necessary 
 ones. This is the grand rule to be observed whenever they 
 are found to clash with each other ; it is the rule which claims 
 the greatest attention, and is therefore placed by Cicero at 
 the head of all the rules he lays down on the subject.* It is 
 counteracting the general aim of the legislature, and the great 
 end of the laws, to neglect one of great importance, under 
 [ 274 ] pretence of observing another which is less necessary, and of 
 inferior consequence : in fact, such conduct is criminal ; for, 
 a lesser good, if it exclude a greater, assumes the nature of 
 an evil. 
 
 f 319. 8th 8. If we cannot acquit ourselves at the same time of two 
 R 1( >. things promised to the same person, it rests with him to choose 
 
 which of the two we are to perform; for he may dispense with 
 the other on this particular occasion ; in which case there will 
 no longer be any collision of duties. But if we cannot obtain 
 a knowledge of his will, we are to presume that the more im- 
 portant one is his choice ; and we should of course give that 
 the preference. And, in case of doubt, we should perform the 
 one to which we are the more strongly bound; it being pre- 
 sumable that he chose to bind us more strongly to that in 
 which he is more deeply interested. 
 
 $ 320. 9th 9. Since the stronger obligation claims a preference over 
 Rule< the weaker, if a treaty that has been confirmed by an oath 
 happens to clash with another treaty that has not been sworn 
 to, all circumstances being in other respects equal, the prefer- 
 ence is to be given to the former ; because the oath adds a 
 
 * " Primum igitur leges oportet con- duae, aut si plures, aut quotquot erunt, 
 
 tendere, considerando utra lex ad conservari non possint quia discrepant 
 
 majores, hoc est, ad utiliorcs, ad ho- inter se, ea maxime conservanda puto- 
 
 nestiores, ac magis necessarias res per- tur, quae ad masimas res pertinere vide- 
 
 tineat. Ex quo conficitur ut, si leges atur." Cicero, ubi supra. 
 374
 
 OF THE MODE OF TEKMINATING DISPUTES. 274 
 
 new force to the obligation. But as it makes no change in BOOK n. 
 the nature of treaties ( 221, &c.), it cannot, for instance, CHAP ' XVIT> 
 entitle a new ally to a preference over a more ancient ally, 
 whose treaty has not been confirmed by an oath. 
 
 10. For the same reason, and, all circumstances being in$32i. 10th 
 other respects equal, what is enjoined under a penalty claims Rule ' 
 a preference over that which is not enforced by one, and what 
 is enjoined under a greater penalty, over that which is enforced 
 by a lesser ; for the penal sanction and convention give addi- 
 tional force to the obligation : they prove that the object in 
 question was more earnestly desired,* and the more so in pro- 
 portion as the penalty is more or less severe. 
 
 All the rules contained in this chapter ought to be com- g 322. Ge- 
 bined together, and the interpretation be made in such manner neral re - 
 as to accord with them all, so far as they are applicable to J^e^o? 8 
 the case. When these rules appear to clash, they reciprocally observinga u 
 counterbalance and limit each other, according to their strength the preced- 
 and importance, and according as they more particularly be- in e rules - 
 long to the case in question. 
 
 CHAP. XVIII. 
 
 OF THE MODE OF TERMINATING DISPUTES BETWEEN NATIONS. CHAP, xvnr. 
 
 THE disputes that arise between nations or their rulers, g 323. Ge- 
 originate either from contested rights or from injuries received, neral direc- 
 A nation ought to preserve the rights which belong to her ; tion . on thia 
 and the care of her own safety and glory forbids her to sub- sub J eot 
 mit to injuries. But in fulfilling the duty which she owes to 
 herself, she must not forget her duties to others. These two [ 275 ] 
 views, combined together, will furnish the maxims of the law 
 of nations respecting the mode of terminating disputes be- 
 tween different states. 
 
 What we have said in Chap. I. IV. and V. of this book, 324. 
 dispenses with our proving here, that a nation ought to do Evei r na - 
 justice to all others with respect to their pretensions, and to* ioni f 
 remove all their just subjects of complaint. She is therefore g^TsatL 
 bound to render to each nation what is her due, to leave her faction re- 
 in the peaceable enjoyment of her rights, to repair any spiting the 
 damage that she herself may have caused, or any injury she jl ! s * com ' 
 may have done, to give adequate satisfaction for such injtt- SotLr. 
 ries as cannot be repaired, and reasonable security against 
 any injury which she has given cause to apprehend. These 
 are so many maxims evidently dictated by that justice which 
 
 * This is also the reason which Cicero ea [lex] qua? diligentissime sancta est." 
 gives : " Nam maxima conservanda est Cicero, ubi supra. 
 
 375
 
 275 OF THE MODE OF TERMINATING 
 
 BOOK ii. nations as well as individuals are, by the law of nature, bound 
 cj^xvm. to observe. 
 
 g 325. HOW Every one is at liberty to recede from his right, to relin- 
 nations may q u i sn a j us ^ subject of complaint, and to forget an injury. 
 
 thofrrihts ^ Ut t ^ ie ru ^ er f a nat i n * s not > i n this respect, so free as a 
 and just private individual. The latter may attend solely to the voice 
 complaints, of generosity ; and, in an affair which concerns none but him- 
 self alone, he may indulge in the pleasure which he derives 
 from doing good, and gratify his love of peace and quiet. 
 The representative of a nation, the sovereign, must not con- 
 sult his own gratification, or suffer himself to be guided by 
 his private inclinations. All his actions must be directed to 
 the greatest advantage of the state, combined with the ge- 
 neral interests of mankind, from which it is inseparable. It 
 behooves the prince, on every occasion, wisely to consider and 
 firmly to execute, whatever is most salutary to the state, most 
 conformable to the duties of the nation towards other states, 
 and, at the same time, to consult justice, equity, humanity, 
 sound policy, and prudence. The rights of the nation are a 
 property of which the sovereign is only the trustee ; and he 
 ought not to dispose of them in any other manner than he 
 has reason to presume the nation herself would dispose of them. 
 And, as to injuries, it is often laudable in a citizen generously 
 to pardon them : he lives under the protection of the laws ; 
 the magistrates are capable of defending or avenging him 
 against those ungrateful or unprincipled wretches whom his 
 indulgence might encourage to a repetition of the offence. A 
 nation has not the same security : it is seldom safe for her to 
 . overlook or forgive an injury, unless she evidently possess 
 sufficient power to crush the rash aggressor who has dared 
 to offend her. In such a case, indeed, it will reflect glory on 
 her to pardon those who acknowledge their faults, 
 
 f 276 1 Parcere subjectis, et debellare suporbos ; 
 
 The duty an d she may do it with safety. But between powers that 
 of a sove- are nearly equal, the endurance of an injury without insist- 
 reign of an j n g on complete satisfaction for it, is almost always imputed 
 independent^ wea k nesg or cowardice, a,nd seldom fails long to subject 
 
 suite to in- '* / i / 
 
 sist on com- the injured party to further wrongs of a more atrocious nature. 
 
 pensation Why do we often see the very reverse of this conduct pursued 
 
 for wrongs D y those who fancy themselves possessed of souls so highly 
 
 ^cte" sub " exalted above the level of the rest of mankind ? Scarcely 
 
 can they receive concessions sufficiently humble from weaker 
 
 states who have had the misfortune to offend them ; but to 
 
 those whom they would find it dangerous to punish, they be- 
 
 have with greater moderation. 
 
 ? 326. If neither of the nations who are engaged in a dispute, 
 
 Means sug- Chinks proper to abandon her right or her pretensions, the 
 the law of contending parties are, by the law of nature, which recom- 
 nature, for mends peace, concord, and charity, bound to try the gentlest
 
 DISPUTES BETWEEN NATIONS. 276 
 
 methods of terminating their differences. These are first, BOOK n. 
 an amicable accommodation. Let each party coolly and can- CHAP - * Ym - 
 didly examine the subject of the dispute, and do justice to the J^ 1 * 1118 
 other ; or let him whose right is too uncertain, voluntarily pu te s . 
 renounce it. There are even occasions when it may be pro- 1. Amica- 
 per for him who has the clearer right, to renounce it, for the ble accom - 
 sake of preserving peace, occasions, which it is the part of modatlon - 
 prudence to discover. To renounce a right in this manner, 
 is not abandoning or neglecting it. People are under no 
 obligation to you for what you abandon : but you gain a friend 
 in the party to whom you amicably yield up what was the 
 subject of a dispute. 
 
 Compromise is a second method of bringing disputes to a 327. 2. 
 peaceable termination. It is an agreement, by which, with- Compro- 
 out precisely deciding on the justice of the jarring preten- mise> 
 sions, the parties recede on both sides, and determine what 
 share each shall have of the thing in dispute, or agree to give 
 it entirely to one of the claimants on condition of certain in- 
 demnifications granted to the other. 
 
 Mediation, in which a common friend interposes his good 328. 3. 
 offices, frequently proves efficacious in engaging the contend- Mediation, 
 ing parties to meet each other halfway, to come to a good 
 understanding, to enter into an agreement or compromise 
 respecting their rights, and, if the question relates to an in- 
 jury, to offer and accept a reasonable satisfaction. The office 
 of mediator requires as great a degree of integrity, as of pru- 
 dence and address. He ought to observe a strict impar- 
 tiality ; he should soften the reproaches of the disputants, calm 
 their resentments, and dispose their minds to a reconcilia- 
 tion. His duty is to favour well-founded claims, and to 
 effect the restoration, to each party, of what belongs to him : 
 but he ought not scrupulously to insist on rigid justice. He 
 is a conciliator, and not a judge : his business is to procure 
 peace ; and he ought to induce him who has right on his side 
 to relax something of his pretensions, if necessary, with a 
 view to so great a blessing. 
 
 The mediator is not guarantee for the treaty which he has 
 conducted, unless he has expressly undertaken to guarantee 
 it. That is an engagement of too great consequence to be [ 277 ] 
 imposed on any one, without his own consent clearly mani- 
 fested. At present, when the affairs of the sovereigns of 
 Europe are so connected, that each has an eye on what passes 
 between those who are the most distant, mediation is a mode 
 of conciliation much used. Does any dispute arise ? The 
 friendly powers, those who are afraid of seeing the flames 
 of war kindled, offer their mediation, and make overtures of 
 peace and accommodation. 
 
 When sovereigns cannot agree about their pretensions and f 329. 4. 
 are nevertheless desirous of preserving or restoring peace, Arbitration, 
 they sometimes submit the decision of their disputes to arbi- 
 
 48 2 o2 377
 
 277 OF THE MODE OF TERMINATING 
 
 CHAP. XVIII. 
 
 trators chosen by common agreement. When once the con- 
 tending parties have entered into articles of arbitration, they 
 are bound to abide by the sentence of the arbitrators : they 
 have engaged to do this ; and the faith of treaties should be 
 religiously observed. 
 
 If, however, the arbitrators, by pronouncing a sentence 
 evidently unjust and unreasonable, should forfeit the cha- 
 racter with which they were invested, their judgment would 
 deserve no attention : the parties had appealed to it only 
 with a view to the decision of doubtful questions. Suppose 
 a board of arbitrators should, by way of reparation for some 
 offence, condemn a sovereign state to become subject to the 
 state she has offended, will any man of sense assert that she 
 is bound to submit to such decision ? If the injustice is of 
 small consequence, it should be borne for the sake of peace ; 
 and if it is not absolutely evident, we ought to endure it, as 
 an evil to which we have voluntarily exposed ourselves. For 
 if it were necessary that we should be convinced of the jus- 
 tice of a sentence before we would submit to it, it would be 
 of very little use to appoint arbitrators. 
 
 There is no reason to apprehend, that, by allowing the 
 parties a liberty of refusing to submit to a manifestly unjust 
 and unreasonable sentence, we should render arbitration use- 
 less : our decision is by no means repugnant to the nature 
 of recognisances or arbitration articles. There can be no 
 difficulty in the affair, except in case of the parties having 
 signed vague and unlimited articles, in which they have not 
 precisely specified the subject of the dispute, or marked the 
 bounds of their opposite pretensions. It may then happen, 
 as in the example just alleged, that the arbitrators will ex- 
 ceed their power, and pronounce on what has not been really 
 submitted to their decision. Being called in to determine 
 what satisfaction a state ought to make for an offence, they 
 may condemn her to become subject to the state she has 
 offended. But she certainly never gave them so extensive a 
 power ; and their absurd sentence is not binding. In order 
 to obviate all difficulty, and cut off every pretext of which 
 fraud might make a handle, it is necessary that the arbitra- 
 tion articles should precisely specify the subject in dispute, 
 the restrictive and opposite pretensions of the parties, the 
 demands of the one, and the objections of the other. These 
 constitute the whole of what is submitted to the decision of 
 the arbitrators ; and it is upon these points alone that the 
 [ 278 ] parties promise to abide by their judgment. If, then, their 
 sentence be confined within these precise bounds, the dispu- 
 tants must acquiesce in it. They cannot say that it is mani- 
 festly unjust, since it is pronounced on a question which they 
 have themselves rendered doubtful by the disordance of their 
 claims, and which has been referred, as such, to the decision 
 of the arbitrators. Before they can pretend to evade such 
 
 378
 
 DISPUTES BETWEEN NATIONS. 278 
 
 a sentence, they should prove, by incontestable facts, that it BOOK n. 
 was the offspring of corruption or flagrant partiality. 
 
 Arbitration is a very reasonable mode, and one that is per- 
 fectly conformable to the law of nature, for the decisio?! of 
 every dispute which does not directly interest the safety of 
 the nation. Though the claim of justice may be mistaken 
 by the arbitrators, it is still more to be feared that it will be 
 overpowered in an appeal to the sword. The Swiss have had 
 the precaution, in all their alliances among themselves, and 
 even in those they have contracted with the neighbouring 
 powers, to agree beforehand on the manner in which their 
 disputes were to be submitted to arbitrators, in case they 
 could not adjust them in an amicable manner. (132) This 
 wise precaution has not a little contributed to maintain the 
 Helvetic republic in that flourishing state which secures her 
 liberty, and renders her respectable throughout Europe. 
 
 In order to put in practice any of these methods, it is ne- g 330. Con- 
 cessary to speak with each other, and to confer together. Con- ferences and 
 ferences and congresses are therefore a mode of conciliation, congresses, 
 which the law of nature recommends to nations, as well cal- 
 culated to bring their differences to an amicable termination. 
 Congresses are assemblies of plenipotentiaries appointed to 
 find out means of conciliation, and to discuss and adjust the - 
 reciprocal pretensions of the contending parties. To afford 
 the prospect of a happy issue of their deliberations, such 
 meetings should be formed and directed by a sincere desire 
 of peace and concord. In the present century, Europe has 
 witnessed two general congresses, that of Cambray,* and 
 that of Soissons,f both tedious farces acted on the political 
 theatre, in which the principal performers were less desirous 
 of coming to an accommodation than of appearing to desire it. 
 
 In order at present to ascertain in what manner and how 331. Dis- 
 far a nation is bound ta resort or accede to these various tinction to 
 modes of accommodation, and which of them she ought to j^**^ 6 " 
 prefer, it becomes necessary, in the first place, to distinguish dlnt^nd 1 
 between cases that are evident, and those that are doubtful, doubtful 
 Does the question relate to a right that is clear, certain, and cases, 
 incontestable ? A sovereign, if he possesses sufficient strength, 
 may peremptorily prosecute and defend that right, without ex- 
 posing it to the doubtful issue of an arbitration. Shall he submit 
 to negotiate and compound for a thing that evidently belongs 
 to him, and which is disputed without the least shadow of jus- [ 279 ] 
 tice ? Much less will he subject it to arbitration. But he 
 ought not to neglect those methods of conciliation, which, 
 
 (132) The stipulations between pri- parties as obligatory, in point of honour, 
 
 vate partners and others in anticipation to endeavour to arbitrate the existing 
 
 of mere possible disputes is analogous, dispute. C. 
 
 and though not legally binding, yet, in * In 1724. 
 
 practice, in case of differences, the mere -j- In 1728. 
 Itipulation is usually considered by the 
 
 379
 
 279 OF THE MODE OF TERMINATING 
 
 K 11. 
 
 without endangering his own right, may induce his opponent 
 CHAP, xvm. ^ ij s t en to reason, such as mediation and conferences. Na- 
 ture gives us no right to have recourse to forcible means, 
 except where gentle and pacific methods prove ineffectual. It 
 is not permitted to be so inflexible in uncertain and doubtful 
 questions. Who will dare to insist that another shall imme- 
 diately, and without examination, relinquish to him a dis- 
 putable right? This would be a means of rendering wars 
 perpetual and inevitable. Both the contending parties may 
 be equally convinced of the justice of their claims : why, 
 therefore, should either yield to the other ? In such a case, 
 they can only demand an examination of the question, pro- 
 pose a conference or an arbitration, or offer to settle the point 
 by articles of agreement. 
 
 I 332. Of In the disputes that arise between sovereigns, it is more- 
 essential over necessary to make a proper distinction between essential 
 rights, and r ight s and rights of inferior importance : for, according to 
 importance 88 *k e difference in the two cases, a different line of conduct is 
 to be pursued. A nation is under many obligations of duty 
 towards herself, towards other nations, and towards the great 
 society of mankind. We know that the duties we owe to 
 ourselves are, generally speaking, paramount to those we owe 
 to others ; but this is to be understood only of such duties as 
 bear some proportion to each other. We cannot refuse, in 
 some degree, to forget ourselves with respect to interests that 
 are not essential, and to make some sacrifices, in order to 
 assist other persons, and especially for the greater benefit of 
 human society : and let us even remark, that we are invited 
 by our own advantage, by our own safety, to make these ge- 
 nerous sacrifices ; for the private good of each is intimately 
 connected with the general happiness. What idea should we 
 entertain of a prince or a nation who would refuse to give up 
 the smallest advantage for the sake of procuring to the world 
 the inestimable blessings of peace ? Every power therefore 
 owes this respect to the happiness of human society, to show 
 himself open to every mode of conciliation, in questions re- 
 lating to interests which are neither essential nor of great 
 importance. If he exposes himself to the loss of something 
 by an accommodation, by a compromise, or by an arbitration, 
 he ought to be sensible what are the dangers, the evils, the 
 calamities of war, and to consider that peace is well worth a 
 small sacrifice. 
 
 But if any one would rob a nation of one of her essential 
 rights, or a right without which she could not hope to support 
 her national existence, if an ambitious neighbour threatens 
 [ 280 ] the liberty of a republic, if he attempts to subjugate and 
 enslave her, she will take counsel only from her own cou- 
 rage. She will not even attempt the mode of conferences on 
 so odious a pretension ; she will, in such a quarrel, exert her 
 utmost efforts, exhaust every resource, and gloriously lavish
 
 DISPUTES BETWEEN NATIONS. 280 
 
 her blood to the last drop if necessary. To listen to the BOOK n. 
 smallest proposition, is putting every thing to the risk. On CHAP - xvi p- 
 such an occasion she may truly say 
 
 Una salus nullam sperare salutem : 
 
 and if fortune prove unfavourable, a free people will prefer 
 death to servitude. What would have become of Rome, had 
 she listened to timid counsels, when Hannibal was encamped 
 before her walls ? The Swiss, ever so ready to embrace pacific 
 measures or submit to legal decisions in disputes respecting 
 less essential points, have uniformly spurned at all idea of 
 compromise with those who harboured designs against their 
 liberty. They even refused on such occasions to submit their 
 disputes to arbitration, or to the judgment of the emperors.* 
 
 In doubtful causes which do not involve essential points, ? 333. How 
 if one of the parties will not accede either to a conference, we acquire 
 an accommodation, a compromise, or an arbitration, the other *^? n * e 
 has only the last resource for the defence of himself and his COU rse to 
 rights, an appeal to the sword ; and he has justice on his force in a 
 side in taking up arms against so untractable an adversary, doubtful 
 For, in a doubtful cause, we can only demand all the reason- cause ' 
 able methods of elucidating the question, and of deciding or 
 accommodating the dispute ( 331). 
 
 But let us never lose sight of what a nation owes to her $ 334. and 
 own security, nor of that prudence by which she ought con- even with - 
 stantly to be directed. To authorize her to have recourse to 
 arms, it is not always necessary that every conciliatory mea- 
 sure be first expressly rejected : it is sufficient that she have 
 every reason to believe that the enemy would not enter into 
 those measures with sincerity, that they could not be brought 
 to terminate in a happy result, and that the intervening 
 delay would only expose her to a greater danger of being over- 
 powered. This maxim is incontestable; but its application 
 in practice is very delicate. A sovereign who would not be 
 considered as a disturber of the public peace, will not be in- 
 duced abruptly to attack him who has not refused to accede 
 to pacific measures, unless he be able to justify his conduct 
 in the eyes of all mankind, by proving that he has reason to 
 consider those peaceable appearances as an artifice employed 
 for the purpose of amusing him, and taking him by surprise. 
 To make his bare suspicions serve as sufficient authority for 
 such a step, would be sapping every foundation on which 
 rests the security of nations. 
 
 The faith of one nation has ever been suspected by an- 
 
 * When, in the year 1355, they sub- should not touch the liberty of those 
 
 mitted their differences with the dukes countries, nor their alliance with the 
 
 of Austria, in relation to the countries other cantons. Tschudi, p. 429, Ac. 
 
 of Zug and Glaris, to the arbitration Stettler, p. 77. History of the Helvetic 
 
 of Charles IV., it was not without this Confederacy, by De Watteville, book iv. 
 
 preliminary condition, that the emperor at the beginning. 
 
 381
 
 280 OF THE MODE OF TERMINATING 
 
 BOOK n. other, and sad experience but too plainly proved that this dis- 
 CHAP. xvin. f. rus f. i g no j. ill-founded. Independence and impunity are a 
 ^ 335. Vo- touchstone that discovers the alloy of the human heart : the 
 luntary law private individual assumes the character of candour and pro- 
 on thhumb -T ' an< ^> * n Default ^ tne reality, his dependence frequently 
 ject obliges him to exhibit in his conduct at least the appearance 
 
 [ 281 ] f those virtues. The great man, who is independent, boasts 
 still more of them in his discourse ; but as soon as he finds 
 himself possessed of superior strength, he scarcely endeavours 
 to save appearances, unless his heart be moulded of materials 
 which, unfortunately, are very rare indeed : and, if powerful 
 interest intervene, he will give himself a latitude in the pur- 
 suit of measures that would cover a private person with shame 
 and infamy. When, therefore, a nation pretends that it would 
 be dangerous for her to attempt pacific measures, she can find 
 abundance of pretexts to give a colour of justice to her pre- 
 cipitation in having recourse to arms. And as, in virtue of 
 the natural liberty of nations, each one is free to judge in her 
 own conscience how she ought to act, and has a right to make 
 her own judgment the sole guide of her conduct with respect 
 to her duties in every thing that is not determined by the 
 perfect rights of another (Prelim. 20), it belongs to each 
 nation to judge whether her situation will admit of pacific 
 measures, before she has recourse to arms. Now, as the vo- 
 luntary law of nations ordains, that, for these reasons, we 
 should esteem lawful whatever a nation thinks proper to do 
 in virtue of her natural liberty (Prelim. 21), by that same 
 voluntary law, nations are bound to consider as lawful the 
 conduct of that power who suddenly takes up arms in a doubt- 
 ful cause, and attempts to force his enemy to come to terms, 
 without having previously tried pacific measures. Louis XIV. 
 was in the heart of the Netherlands before it was known in 
 Spain that he laid claim to the sovereignty of a part of those 
 rich provinces in right of the queen his wife. The king 
 of Prussia, in 1741, published his manifesto in Silesia, at the 
 head of sixty thousand men. Those princes might have wise 
 and just reasons for acting thus : and this is sufficient at the 
 tribunal of the voluntary law of nations. But a thing which 
 that law tolerates through necessity, may be found very un- 
 just in itself: and a prince who puts it in practice may render 
 himself very guilty in the sight of his own conscience, and 
 very unjust towards him whom he attacks, though he is not 
 accountable for it to other nations, as he cannot be accused 
 of violating the general rules which they are bound to observe 
 towards each other. But if he abuses this liberty, he gives 
 all nations cause to hate and suspect him ; he authorizes them 
 to confederate against him ; and thus, while he thinks he is pro- 
 moting his interests, he sometimes irretrievably ruins them. 
 
 A sovereign ought, in all his quarrels, to entertain a sin- 
 cere desire of rendering justice and preserving peace. He 
 
 382
 
 DISPUTES BETWEEN NATIONS. 281 
 
 is bound, before he take up arms, and also after having taken BOOK n. 
 them up, to offer equitable conditions; and then alone he 
 
 is justifiable in appealing to the sword against an obstinate ? 336 - 
 enemy who refuses to listen to the voice of justice or equity, f^ 1 ^^ to 
 
 It is the business of the appellant to prove his right ; for Coffered! 
 he ought to show a good foundation for demanding a thing [ 282 ] 
 which he does not possess. He must have a title : and peo- 337. PCS- 
 pie are not obliged to respect that title any farther than he s f ssor ' s 
 shows its validity. The possessor may therefore remain "^.^ 
 in possession till proof be adduced to convince him that his casegt 
 possession is unjust. As long as that remains undone, he 
 has a right to maintain himself in it, and even to recover it 
 by force, if he has been despoiled of it. Consequently it is 
 not allowable to take up arms in order to obtain possession 
 of a thing to which the claimant has but an uncertain or 
 doubtful right. He is only justifiable in compelling the pos- 
 sessor, by force of arms if necessary, to come to a discussion 
 of the question, to accede to some reasonable mode of deci- 
 sion or accommodation, or, finally, to settle the point by arti- 
 cles of agreement upon an equitable footing ( 333). 
 
 If the subject of the dispute be an injury received, the g 335. HOW 
 offended party ought to follow the rules we have just esta- reparation of 
 blished. His own advantage, and that of human society, ^ 
 require, that, previous to taking up arms, he should try every 
 pacific mode of obtaining either a reparation of the injury, 
 or a just satisfaction, unless there be substantial reasons to 
 dispense with his recurrence to such measures ( 334). This 
 moderation, this circumspection, is the more becoming, and 
 in general even indispensable, as the action which we look 
 upon as an injury does not always proceed from a design to 
 offend us, and is sometimes rather a mistake than an act of 
 malice. It even frequently happens that the injury is done 
 by inferior persons, without their sovereign having any share 
 in it : and on these occasions it is natural to presume that he 
 will not refuse us a just satisfaction. When some petty offi- 
 cers, not long since, violated the territory of Savoy in order 
 to carry off from thence a noted smuggling chief, the King 
 of Sardinia caused his complaints to be laid before the court 
 of France ; and Louis XV. thought it no derogation to his 
 greatness to send an ambassador extraordinary to Turin to 
 give satisfaction for that violence. Thus an affair of so deli- 
 cate a nature was terminated in a manner equally honour- 
 able to the two kings. 
 
 When a nation cannot obtain justice, whether for a wrong I 339. Re- 
 or an injury, she has a right to do herself- justice. But be- taiiation. 
 fore she declares war (of which we shall treat in the follow- 
 ing book), there are various methods practised among nations, 
 which remain to be treated of here. Among those methods 
 of obtaining satisfaction, has been reckoned what is called 
 the law of retaliation, according to which we make another
 
 282 OF THE MODE OF TERMINATING 
 
 BOOK ii. suffer precisely as much evil as he has done. Many have 
 CHAP, xvin. exto n e( i t } iat j aw? as being founded in the strictest justice: 
 and can we be surprised at their having proposed it to princes, 
 [ 283 ] since they have presumed to make it a rule even for the deity 
 himself? The ancients called it the law of Rhadamanthus. 
 The idea is wholly derived from the obscure and false notion 
 which represents evil as essentially and in its own nature wor- 
 thy of punishment. We have shown above (Book I. 169), 
 what is the true origin of the right of punishing ;* whence 
 we have deduced the true and just proportion of penalties 
 (Book I. 171). Let us say, then, that a nation may punish 
 another which has done her an injury, as we have shown 
 above (see Chap. IV. and VI. of this book), if the latter re- 
 fuses to give her a just satisfaction : but she has not a right 
 to extend the penalty beyond what her own safety requires. 
 Retaliation, which is unjust between private persons, would 
 be much more so between nations, because it would, in the lat- 
 ter case, be difficult to make the punishment fall on those who 
 had done the injury. What right have you to cut off the 
 nose and ears of the ambassador of a barbarian who had 
 treated your ambassador in that manner ? As to those repri- 
 sals in time of war which partake of the nature of retalia- 
 tion, they are justified on other principles ; and we shall 
 speak of them in their proper place. The only truth in this 
 idea of retaliation is, that, all circumstances being in other 
 respects equal, the punishment ought to bear some proportion 
 to the evil for which we mean to inflict it, the very object 
 and foundation of punishment requiring thus much. 
 | 340. Va- It is not always necessary to have recourse to arms, in 
 rious modes order to punish a nation. The offended party may, by way 
 of punish- o f p un i s h men f deprive her of the privileges she enjoyed in 
 
 ing, without ..*,.. \ ft '^il 
 
 having re- nis dominions, seize on some ot her property, if he has an 
 course to opportunity, and detain it till she has given him sufficient 
 arms. satisfaction. 
 
 g 341. Re- When a sovereign is not satisfied with the manner in which 
 tortion. n i g subjects are treated by the laws and customs of another 
 nation, he is at liberty to declare that he will treat the sub- 
 jects of that nation in the same manner as his are treated. 
 This is what is called retortion. There is nothing in this, 
 but what is conformable to justice and sound policy. No one 
 can complain on receiving the same treatment which he gives 
 to others. Thus the king of Poland, elector of Saxony, en- 
 forces the law of escheatage only against the subjects of those 
 princes who make the Saxons liable to it. The retortion may 
 also take place with respect to certain regulations, of which 
 we have no right to complain, and which we are even obliged 
 to approve, though it is proper to guard against their effect 
 
 * " Nam, ut Plato ait, nemo prudena punit quia peccatum est, sed, ne pecce- 
 tur." Seneca, de Ira. 

 
 DISPUTES BETWEEN NATIONS. 288 
 
 by imitating them. Such are the orders relating to the im- BOOK n. 
 portation or exportation of certain commodities or merchan- CHAP> XTm> 
 dise. On the other hand, circumstances frequently forbid us 
 to have recourse to retortion. In this respect, each nation 
 may act according to the dictates of her own prudence. 
 
 Reprisals are used between nation and nation in order to do 342. Re- 
 themselves justice when they cannot otherwise obtain it. (133)P risal3 - 
 If a nation has taken possession of what belongs to another, 
 if she refuses to pay a debt, to repair an injury, or to give s 
 adequate satisfaction for it, the latter may seize something [ 284 ] 
 belonging to the former, and apply it to her own advantage 
 till she obtains payment of what is due to her, together with 
 interest and damages, or keep it as a pledge till she has re- 
 ceived ample satisfaction. In the latter case, it is rather a 
 stoppage or a seizure, than reprisals : but they are frequently 
 confounded in common language. The effects thus seized on 
 are preserved while there is any hope of obtaining satisfac- 
 tion or justice. As soon as that hope disappears, they are 
 confiscated, and then the reprisals are accomplished. If the 
 two nations, upon this ground of quarrel, come to an open 
 rupture, satisfaction is considered as refused from the mo- 
 ment that war is declared or hostilities commenced ; and then 
 also the effects seized may be confiscated. 
 
 It is only upon evidently just grounds, or for a well-ascer- 343 - ^ a? 
 tained and undeniable debt, that the law of nations allows usj^ ^^l 
 to make reprisals. For he who advances a doubtful preten- tnem laj! ,_ 
 sion, cannot in the first instance demand any thing more than ful. 
 an equitable examination of his right. In the next place, 
 before he proceed to such extremities, he should be able to 
 show that he has ineffectually demanded justice, or at least 
 that he has every reason to think it would be in vain for him 
 to demand it. Then alone does it become lawful for him to 
 take the matter into his own hands, and do himself justice. It 
 would be too inconsistent with the peace, the repose, and the 
 safety of nations, with their mutual commerce, and the duties 
 which bind them to each other, that each one should be author- 
 ized to have immediate recourse to violent measures, without 
 knowing whether there exist on the other side a disposition to 
 do her justice, or to refuse it. 
 
 But, in order perfectly to understand this article, it must 
 be observed, that if, in a disputable case, our adversary either 
 refuses to pursue, or artfully evades the necessary steps for 
 bringing the matter to the proof, if he does not candidly 
 and sincerely accede to some pacific mode of terminating the 
 dispute, especially if he is foremost in adopting violent mea- 
 sures, he gives justice to our cause which before was proble- 
 matical: we may then have recourse to reprisals, or the 
 
 (133) See further, as to reprisals and thereon, 1 Chitty's Commercial Law, 
 letters of marque, and English decisions 418 423. C. 
 
 49 2 H 385
 
 284 OF THE MODE OF TERMINATING 
 
 BOOK n. seizure of his effects, in order to compel him to embrace the 
 PHAP. xvm - me thod8 of conciliation which the law of nature prescribes. 
 This is the last remaining effort previous to a commencement 
 of open hostilities. 
 
 344. Upon We have observed above ( 81), that the wealth of the citi- 
 what effects zens constitutes a part of the aggregate wealth of a nation, 
 ^eTi34) S tnat > between state and state, the private property of the 
 members is considered as belonging to the body, and is an- 
 swerable for the debts of that body ( 82): (134) whence it 
 follows, that in reprisals we seize on the property of the sub- 
 ject just as we would on that of the state or sovereign. 
 Every thing that belongs to the nation is subject to reprisals, 
 whenever it can be seized, provided it be not a deposit in- 
 trusted to the public faith. As it is only in consequence of 
 that confidence which the proprietor has placed in our good- 
 [ 285 ] faith, that we happen to have such deposit in our hands, it 
 ought to be respected, even in case of open war. Such is 
 the conduct observed in France, England, and elsewhere, 
 with respect to the money which foreigners have placed in 
 the public funds. 
 
 j 345. Tke He who makes reprisals against a nation on the property 
 state ought o f fa members indiscriminately, cannot be taxed with seizing 
 8atethose ^ property of an innocent person for the debt of another : 
 who suffer for, in this case, the sovereign is to compensate those of his 
 by reprisals, subjects on whom the reprisals fall ; it is a debt of the state 
 or nation, of which each citizen ought only to pay his quota.* 
 g 34, The It is only between state and state that all the property 
 ^ t " le individuals is considered as belonging to the nation. 
 Sovereigns transact their affairs between themselves ; they 
 
 (134!) The ancient law of nations payment la suspended during the war, 
 perhaps was so; Attorney -General v. and revives again on the return of 
 Weeden, Parko's Rep. 267; but see peace. 1 Rob. Rep. 196; 2 Rob. Rep. 
 post, book fii. chap. v. 77, p. 323, as 200. Ex parte Bomsmaker, 13 Ves. J. 
 to the change in practice. See fur- 71. Furlado v. Rodgen, 3 Bos. & Pul. 
 ther, Chitty's Commercial Law, 421, 191. Antoine v. Morcsfand, 6 Taunt. 
 423, 425. $ The right is undoubted. 239. Brandon v. Curling, 4 East, 410. 
 The Emulom, 1 <Ja!L Rep. 576 see Emerigon, vol. 1, p. 567. Marlon's L. 
 the authorities, American and Foreign, N. 277. J It is the modern usage, but 
 cited by Stry, J., and his remarks on it does not constitute a rule, limicn v. 
 the opinion of Vattel.% But such an- The United States, 8 Cranch, 110.} 
 dent law of nations, with respect to See further, Wolf v. Ojcliolm, 6 Maule 
 confiscation and reprisals, has in more & Selw. 92, where an ordinance in 
 modern times been greatly relaxed, and Denmark for confiscating private debts 
 indeed treaties usually provide that, in and property was held illegal and in- 
 case of war, the property of private valid. C. 
 
 Individuals of each state shall be pro- * On the subject of reprisals, it is 
 
 tooted, and ample time for their re- necessary to observe, that when we 
 
 moral bo allowed. But independently adopt that expedient, as being a gentler 
 
 f such express treaties, and by the ge- mode of proceeding than that of war, 
 
 ueral modern law of nations, the right the reprisals ought not to be general. 
 
 to debts and choses In actions is not The grand pensionary Do Witt very 
 
 forfeited by way of reprisal or other- properly remarked, " I do not see any 
 
 wise on the breaking out of war, but difference between general reprisals and 
 
 merely the remedy or right to enforce o|ca wax." 
 586
 
 DISPUTES BETWEEN NATIONS. 285 
 
 carry on business with each other directly, and can only BOOK n. 
 consider a foreign nation as a society of men who have but one CHAP - xym - 
 common interest. It belongs therefore to sovereigns alone order re P ri - 
 to make and order reprisals on the footing we have just de- sals> 
 scribed. Besides, this violent measure approaches very near 
 to an open rupture, and is frequently followed by one. It is, 
 therefore, an affair of too serious a nature to be left to the 
 discretion of private individuals. And accordingly we see, 
 that in every civilized state, a subject who thinks himself 
 injured by a foreign nation, has recourse to his sovereign, in Letters of 
 order to obtain permission to make reprisals. This is what marc i ae - 
 the French call applying for letters of marque. (135) 
 
 We may make reprisals against a nation not only for the 347. Re- 
 actions of the sovereign, but also for those of his subjects : P"* als 
 and this may take place when the state or the sovereign P ar ~ nf timffo 
 ticipates in the act of his subject, and takes it upon himself, actions of 
 which he may do in several ways, as we have shown in Chap, its subjects, 
 VI. of this Book. and in fa- 
 
 in the same manner the sovereign demands justice, or ^j^ the 
 makes reprisals, not only for his own concerns, but also for gu bjects. 
 those of his subjects, whom he is bound to protect, and whose 
 cause is that of the nation. 
 
 But to grant reprisals against a nation in favour of fo- 348. But 
 reigners, is to set himself up as a judge between that nation not in 
 and those foreigners ; which no sovereign has a right to do. 
 The cause of reprisals ought to be just : they ought even to 
 be grounded on a denial of justice, either an actual denial, 
 or one which there is good reason to apprehend ( 343). Now, 
 what right have we to judge whether the complaint of a 
 stranger against an independent state is just, if he has really 
 been denied justice ? If it be objected, that we may espouse 
 the quarrel of another state in a war that appears to us to be 
 just, to assist her, and even to unite with her, the case is 
 different. In granting succours against a nation, we do not [ 286 ] 
 detain her property or her people that happen to be within 
 our territories under the public faith ; and in declaring war 
 against her, we suffer her to withdraw her subjects and her 
 effects, as will hereafter appear. In the case of reprisals 
 granted to our own subjects, a nation cannot complain that 
 we violate the public faith in seizing on her people or her 
 property ; because we are under no other obligation to grant 
 security to that property and those people, than what arises 
 from a reasonable supposition that their nation will not, in 
 the first instance, violate, with respect to us or our subjects, 
 the rules of justice which nations ought to observe towards 
 each other. If she violate them, we have a right to obtain 
 satisfaction ; and the mode of reprisals is more easy, safe, 
 and mild, than that of war. We cannot urge the same argu- 
 
 (135) As to decisions on letters of Law, 418422. Chilly's L. N. 73 
 marque, see 1 Chitty's Commercial 86. C. 
 
 387
 
 286 OF THE MODE OF TERMINATING 
 
 BOOK ii. ments in justification of reprisals ordered in favour of foreign- 
 CHAI>. xvni. erg> p or the security we owe to the subjects of a foreign 
 power does not depend, as a condition, on the security which 
 that power shall grant to all other nations, to people who do 
 not belong to us, and are not under our protection. Eng- 
 land having, in 1662, granted reprisals against the United 
 Provinces in favour of the knights of Malta,* the states of 
 Holland asserted, with good reason, that, according to the 
 law of nations, reprisals can only be granted to maintain the 
 rights of the state, and not for an affair in which the nation 
 has no concern.f 
 
 g 349. Those The individuals, who by their actions have given cause for 
 who have just reprisals, are bound to indemnify those on whom they 
 given cause faft . an( j ^g 80V ereign ought to compel them to do it. For 
 oughuTL- we are un der an obligation to repair the damage we have oc- 
 demnify casioned by our own fault. And, although the sovereign, by 
 those who refusing justice to the offended party, has brought on the 
 fer by reprisals against his subjects, those who were the first cause 
 of them do not become the less guilty : the fault of the sove- 
 reign does not exempt them from repairing the consequences 
 of theirs. However, if they were ready to give satisfaction 
 to the party whom they had injured or offended, and their 
 sovereign has prevented their doing it, they are not bound to 
 do any thing more in that case, than they would before have 
 been obliged to do in order to prevent the reprisals ; and it 
 is the sovereign's duty to repair the additional damage, which 
 is the consequence of his own fault ( 345). 
 
 I 350. What We have said ( 343) that we ought not to make reprisals, 
 
 may be except when we are unable to obtain justice. Now, justice 
 
 deemed a j g re f use( j j n several ways : First, by a denial of justice, 
 
 'us'tice * P ro P er ty so called, or by a refusal to hear your complaints 
 
 or those of your subjects, or to admit them to establish their 
 
 right before the ordinary tribunals. Secondly, by studied 
 
 [ 287 ] delays, for which no good reasons can be given delays 
 
 * On that subject, the grand pen- except in case of an open denial of jus- 
 sionary De Witt wrote as follows: tice. Finally, it is also evident, that, 
 " Nothing can be more absurd than even in case of a denial of justice, ho 
 that grant of reprisals : for, to say no- cannot empower his subjects to make 
 thing of its proceeding from a board reprisals, until he has repeatedly de- 
 of admiralty, who have no power to manded justice for them, and added, 
 grant it without infringing on the that, in the event of a refusal, he will 
 sovereign authority of their prince, it be obliged to grant them letters of 
 is evident that no sovereign can grant marque and reprisal." From the answers 
 or make reprisals, except for the de- of M. Boreel, it appears that this con- 
 fence or indemnification of his own duct of the British admiralty was 
 subjects, whom he is, in the sight of strongly condemned by the court of 
 God, bound to protect; but he never France. The king of England testified 
 can grant reprisals in favour of any his disapprobation of it, and gave orders 
 foreigner who is not under his protec- for the release of the Duteh vessels 
 , tion, and with whose sovereign he has whose seizure had been permitted by 
 not any engagement to that effect, ex way of reprisal. Edit. 1797. 
 pacto vel fcedere. Besides, it is certain f See Bynckershoek's Competent 
 that reprisals ought not to bo granted Judge of Embassadors, chap. xxii. 
 388
 
 DISPUTES BETWEEN NATIONS. 287 
 
 equivalent to a refusal, or still more ruinous. Thirdly, by BOOK n. 
 an evidently unjust and partial decision. But it is necessary cnAP - XVI ": 
 that this injustice should be manifest and palpable. In all 
 cases susceptible of doubt, a sovereign ought not to listen to 
 the complaints of his subjects against a foreign tribunal, nor 
 to attempt to screen them from the effects of a sentence passed 
 in due form : for that would be the means of exciting continual 
 troubles. The law of nations directs that states should re- 
 ciprocally pay that kind of deference to each other's juris- 
 diction, for the same reason as the civil law ordains, within 
 the state, that every definitive sentence, passed in due form, 
 shall be esteemed just. Between nation and nation the obli- 
 gation is neither so express nor so extensive : but it cannot be 
 denied, that it is highly conducive to their peace and con- 
 formable to their duties towards human society, to oblige 
 their subjects, in all doubtful cases, and, unless where there 
 is a manifest wrong done to them, to submit to the sentences 
 of the foreign tribunals before which their causes have been 
 tried. (See above, 84). 
 
 As we may seize the things which belong to a nation, in $ 351. Sub- 
 order to compel her to do justice, we may equally, for the jects arrest- 
 same reason, arrest some of her citizens, and not release ed by *** 
 them till we have received full satisfaction. This is what the 
 Greeks called Androlepsia.* At Athens the law permitted 
 the relatives of him who had been assassinated in a foreign 
 country, to seize three of the inhabitants of that country, 
 and to detain them till the murderer was punished or delivered 
 up.f But, in the practice of modern Europe, this method is 
 seldom resorted to, except with a view to obtain satisfaction 
 for an injury of the same nature that is to say, to compel 
 a sovereign to release a person whom he detains unjustly. 
 
 The persons, however, who are thus arrested, being detained 
 only as a security, or pledge, in order to oblige a nation to 
 do justice if their sovereign obstinately persists in refusing 
 it, we cannot take away their lives, or inflict any corporal 
 punishment upon them, for a refusal of which they are not 
 guilty. Their property, their liberty itself, may be staked 
 for the debts of the state ; but not their lives, of which man 
 has not the power of disposing. A sovereign has no right to 
 put to death the subjects of a state which has done him an 
 injury, except when they are engaged in war ; and we shall 
 see, elsewhere, what it is that gives him that right. 
 
 But the sovereign is authorized to employ forcible means \ 352. Our 
 against those who resist him in the exertion of his right, a nd r! g hta s ainst 
 to pursue such means as far as is necessary to overcome their tho 
 unjust resistance. It is therefore lawful to repel those who 
 undertake to oppose the making of just reprisals : and if, for 
 that purpose, it be necessary to proceed even so far as to 
 
 * A*(5poAij^, seizure of men. f Demosthenes, Orat adv. Aristocrat 
 
 H2 389
 
 288 OF THE MODE OF TERMINATING 
 
 BOOK n. put them to death, the whole blame of that misfortune is im- 
 CHAP. xvur. p u t a ble to their unjust and inconsiderate resistance. In such 
 a case, Grotius would have us rather abstain from making 
 reprisals.* Between private persons, and for things that are 
 not of the highest importance, it is certainly worthy, not only 
 of a Christian, but, in general, of every man of principle, 
 rather to abandon his right than to kill the person who un- 
 justly resists him. But, between sovereigns, the case is other- 
 wise. To suffer themselves to be bullied, would be attended 
 with consequences of too serious a nature. The true and just 
 welfare of the state is the grand rule : moderation is ever lau- 
 dable in itself; but the conductors of nations ought to practise 
 that virtue so far only as it is consistent with the happiness 
 and safety of their people. 
 
 g 353. Just After having demonstrated the lawfulness of making re- 
 reprisals prisals when we can no otherwise obtain justice, we may 
 donotaf- thence readily conclude that a sovereign is not justifiable in 
 cause* roT ma king forcible opposition to, or waging war against, the 
 war. party, who, by ordering or making reprisals in such a case, 
 
 only exerts his just right. 
 
 g 354. How And as the law of humanity directs nations as well as in- 
 wo ought to dividuals ever to prefer the gentlest measures, when they are 
 confine our- Su f5 c i en t to obtain justice whenever a sovereign can, by 
 prilais^r * ne mo & e f reprisals, procure a just indemnification or a 
 at length suitable satisfaction, he ought to confine himself to this method, 
 proceed to which is less violent and less fatal than war. On this subject, 
 hosiiiities. i cannot avoid noticing an error which is too general to be 
 wholly disregarded. If it happens that a prince, having 
 reason to complain of some injustice or some acts of hostility, 
 and not finding his adversary disposed to give him satisfaction, 
 determines to make reprisals with the view of endeavouring 
 to compel him to listen to the voice of justice before he proceeds 
 to an open rupture, if, without a declaration of war, he seizes 
 on his effects, his shipping, and detains them as pledges, you 
 hear certain men cry out that this is robbery. If that prince 
 had at once declared war, they would not have said a word ; 
 they would perhaps have praised his conduct. Strange for- 
 getfulness of reason, and of every sound principle ! Would 
 we not, at this rate, be tempted to suppose that nations were 
 bound to observe the laws of chivalry, to challenge each 
 other to the lists, and decide their quarrels like a pair of 
 doughty champions engaged in regular duel ? It is the duty 
 of sovereigns attentively to maintain the rights of their people, 
 and to obtain justice by every lawful means still, however, 
 [ 289 ] preferring the gentlest methods : and we again repeat the as- 
 sertion it is evident that the mode of reprisals, of which we 
 are speaking, is infinitely more gentle and less fatal than that 
 of war. But since, between powers whose strength is nearly 
 
 * Grotius De Jure Belli et Pacis, lib. iii. cap. ii. g 6. 
 390
 
 DISPUTES BETWEEN NATIONS. 289 
 
 AP. xvin. 
 
 equal, reprisals often lead to war, they ought not to be attempt- _ BO _ OK _ 
 ed, except in the last extremity. In such circumstances, the - 
 prince who has recourse to that expedient, instead of proceed- 
 ing to an open rupture, is undoubtedly entitled to praise for 
 his moderation and prudence. 
 
 Those who run to arms without necessity, are the scourges 
 of the human race, barbarians, enemies to society, and re- 
 bellious violaters of the laws of nature, or rather, the laws of 
 the common father of mankind. 
 
 There are cases, however, in which reprisals would be justly 
 condemnable, even when a declaration of war would not be 
 so : and these are precisely those cases in which nations may 
 with justice take up arms. When the question which con- 
 stitutes the ground of a dispute, relates, not to an act of 
 violence, or an injury received, but to a contested right, 
 after an ineffectual endeavour to obtain justice by conciliatory 
 and pacific measures, it is a declaration of war that ought 
 to follow, and not pretended reprisals, which, in such a case, 
 would only be real acts of hostility without a declaration of 
 war, and would be contrary to public faith as well as to the 
 mutual duties of nations. This will more evidently appear, 
 when we shall have explained the reasons which establish the 
 obligation of declaring war previous to a commencement of 
 hostilities.* 
 
 But if, from particular conjunctures, and from the obstinacy 
 of an unjust adversary, neither reprisals, nor any of the 
 methods of which we have been treating, should prove suffi- 
 cient for our defence, and for the protection of our rights, 
 there remains only the wretched and melancholy alternative 
 of war, which will be the subject of the following book. 
 
 * See Book in. chap. IT.
 
 291 
 
 BOOK III. 
 OF WAR. 
 
 CHAP. I. 
 
 CHA* ."i*.' o;p WAR 5 ITS DIFFERENT KINDS, AND THE RIGHT OF MAKING 
 
 WAR. 
 
 i. Defi- W AR is that state in which we prosecute our right by force. 
 nition of "We also understand, by this term, the act itself, or the man- 
 war, rise) ner O f p rosecu ting our right by force : but it is more con- 
 formable to general usage, and more proper in a treatise on 
 the law of war, to understand this term in the sense we have 
 annexed to it. 
 
 g 2. Public Public war is that which takes place between nations or 
 war. (136) sovereigns, and which is carried on in the name of the public 
 power, and by its order. This is the war we are here to con- 
 sider : private war, or that which is carried on between pri- 
 vate individuals, belongs to the law of nature properly so 
 called. 
 
 3. Right In treating of the right to security (Book II. Chap. IV.), 
 of making we have shown that nature gives men a right to employ force, 
 war. (136) w h en ft j s necessary for their defence, and for the preserva- 
 tion of their rights. This principle is generally acknowledged : 
 reason demonstrates it ; and nature herself has engraved it 
 on the heart of man. Some fanatics indeed, taking in a literal 
 sense the moderation recommended in the gospel, have adopted 
 the strange fancy of suffering themselves to be massacred or 
 [ 292 ] plundered, rather than oppose force to violence. But we 
 need not fear that this error will make any great progress. 
 The generality of mankind will, of themselves, guard against 
 its contagion happy, if they as well knew how to keep within 
 the just bounds which nature has set to a right that is granted 
 only through necessity ! To mark those just bounds, and, 
 by the rules of justice, equity, and humanity, to moderate the 
 exercise of that harsh, though too often necessary right, is 
 the intention of this third book. 
 
 (136) See definition of war and of 4 Rob. Rep. 252 ; Bro. Ab. tit. Deni- 
 
 the king's sole right to declare it, as zen, pi. 20, and Chitty's L. N. 28, 29, 
 
 regards England, per Sir Wm. Scott, 30. C. 
 The Hoop, 1 Rob. R. 196; Nayade, 
 392
 
 OF WAK, ETC. 292 
 
 As nature has given men no right to employ force, unless BOOK m. 
 when it becomes necessary for self defence and the preserva- CHAP ' "' 
 tion of their rights (Book II. 49, &c.), the inference is mani- 2 4 - II be - 
 fest, that, since the establishment of political societies, a right, } ^ e ^ e 
 so dangerous in its exercise, no longer remains with private re i gn pow er. 
 persons except in those rencounters where society cannot pro- (137) 
 tect or defend them. In the bosom of society, the public 
 authority decides all the disputes of the citizens, represses 
 violence, and checks every attempt to do ourselves justice 
 with our own hands. If a private person intends to prosecute 
 his right against the subject of a foreign power, he may apply 
 to the sovereign of his adversary, or to the magistrates in- 
 vested with the public authority : and if he is denied justice 
 by them, he must have recourse to his own sovereign, who is 
 obliged to protect him. It would be too dangerous to allow 
 every citizen the liberty of doing himself justice against for- 
 eigners ; as, in that case, there would not be a single member 
 of the state who might not involve it in war. And how could 
 peace be preserved between nations, if it were in the power 
 of every private individual to disturb it ? A right of so 
 momentous a nature, the right of judging whether the na- 
 tion has real grounds of complaint, whether she is authorized 
 to employ force, and justifiable in taking up arms, whether 
 prudence will admit of such a step, and whether the welfare 
 of the state requires it, that right, I say, can belong only 
 to the body of the nation, or to the sovereign, her repre- 
 sentative. It is doubtless one of those rights, without which 
 there can be no salutary government, and which are therefore 
 catted rights of majesty (Book I. 45). 
 
 Thus the sovereign power alone is possessed of authority 
 to make war. But, as the different rights which constitute 
 this power, originally resident in the body of the nation, may 
 be separated or limited according to the will of the nation 
 (Book I. 31 and 45), it is from the particular constitution 
 of each state, that we are to learn where the power resides, 
 that is authorized to make war in the name of the society at 
 large. The kings of England, whose power is in other re- [ 293 ~\ 
 spects so limited, have the right of making war and peace.* 
 Those of Sweden have lost it. The brilliant but ruinous ex- 
 ploits of Charles XII. sufficiently warranted the states of 
 that kingdom to reserve to themselves a right of such im- 
 portance to their safety. 
 
 (137) The right of declaring war is, in itself. But as a king of England 
 
 by his prerogative, vested in the king cannot, without the concurrence of 
 
 of the United Kingdom of Great Britain parliament, either raise money or com- 
 
 and Ireland. Bro. Ab. tit. Denizen, pi. pel his subjects to take up arms, his 
 
 20. The ship Huop, per Sir W. Scott, 1 right of making war is, in fact, but a 
 
 Rob. R. 196, post, 432. C. {And, by slender prerogative, unless the parlia- 
 
 the Constitution of the United States, ment second him with supplies. Ed. 
 
 in Congress. Art 1, 8.} 1797. 
 
 * I here speak of the right considered 
 
 50 393
 
 293 OF THE INSTRUMENTS OF WAR, ETC. 
 
 BOOK in. War is either defensive or offensive. He who takes up 
 CHAP - I- .arms to repel the attack of an enemy, carries on a defensive 
 I 5. Defen- war. He who is foremost in taking up arms, and attacks a 
 sive and of- nation that lived in peace with him, wages offensive war. 
 fensive war. ^he object of a defensive war is very simple ; it is no other 
 than self defence : in that of offensive war there is as great 
 a variety as in the multifarious concerns of nations ; but, in 
 general, it relates either to the prosecution of some rights, or 
 to safety. We attack a nation with a view either to obtain 
 something to which we lay claim, to punish her for an injury 
 she has done us, or to prevent one which she is preparing to 
 do, and thus avert a danger with which she seems to threaten 
 us. I do not here speak of the justice of war : that shall 
 make the subject of a particular chapter : all I here propose 
 is to indicate, in general, the various objects for which a na- 
 tion takes up arms objects which may furnish lawful reasons, 
 or unjust pretences, but which are at least susceptible of a 
 colour of right. I do not, therefore, among the objects of 
 offensive war, set down conquest, or the desire of invading 
 the property of others : views of that nature, destitute even 
 of any reasonable pretext to countenance them, do not con- 
 stitute the object of regular warfare, but of robbery, which 
 we shall consider in its proper place. 
 
 CHAP, n. CHAP. II. 
 
 OF THE INSTRUMENTS OF WAR, THE RAISING OF TROOPS, &C., 
 THEIR COMMANDERS, OR THE SUBORDINATE POWERS IN 
 WAR. (138) 
 
 6. Instru- THE sovereign is the real author of war, which is carried 
 monts of on in his name, and by his order. The troops, officers, 
 war< soldiers, and, in general, all those by whose agency the sove- 
 
 reign makes war, are only instruments in his hands. They 
 execute his will and not their own. The arms, and all the 
 apparatus of things used in war, are instruments of an in- 
 ferior order. For the decision of questions that will occur 
 in the sequel, it is of importance to determine precisely what 
 are the things which belong to war. Without entering here 
 into a minute detail, we shall only observe that whatever is 
 peculiarly used in waging war, is to be classed among the 
 
 (138) What are instruments of war, le croit yulgairement, 1'art do dctruire 
 
 or contraband, and of the prohibitions mais 1'art de paralyaer dos forces de 
 
 respecting them, as regards neutral com- 1'ennemi. Cours le Droit Public. 
 
 merce, see Chilly's L. N. 119 to 128 ; 1 Paris, 1830 ; torn. 2, pages 85, 86, <t Id. 
 
 Chilly's Commercial Law, 445 to 449. 406. C. 
 L'art de la guerre n'est pas ainsi qu'on
 
 OF THE INSTRUMENTS OF WAR, ETC. 293 
 
 instruments of war ; and things which are equally used at all BOOK m. 
 times, such as provisions, belong to peace, unless it be in cer- CHAP - " 
 tain particular junctures, when those things appear to be 
 specially destined for the support of war. Arms of all kinds, 
 artillery, gun-powder, salt-petre and sulphur of which it is 
 composed, ladders, gabions, tools and all other implements [ 294 ] 
 for sieges, materials for building ships of war, tents, soldiers' 
 clothes, &c. : these always belong to war. 
 
 As war cannot be carried on without soldiers, it is evident ? 7. Right 
 that whoever has the right of making war, has also naturally of levying 
 that of raising troops. The latter, therefore, belongs likewise Jj^ 8 ' 
 to the sovereign ( 4), and is one of the prerogatives of ma- 
 jesty (Book I. 45). The power of levying troops, or rais- 
 ing an army, is of too great consequence in a state, to be 
 intrusted to any other than the sovereign. The subordinate 
 authorities are not invested with it ; they exercise it only by 
 order or commission from the sovereign. But it is not always 
 necessary that they should have an express order for the 
 purpose. On those urgent exigencies which do not allow 
 time to wait for the supreme order, the governor of a pro- 
 vince, or the commandant of a town, may raise troops for 
 the defence of the town or province committed to their care : 
 and this they do by virtue of the power tacitly given them 
 by their commission in cases of this nature. 
 
 I say that this important power is the appendage of sove- 
 reignty ; it makes a part of the supreme authority. But we 
 have already seen that those rights which together constitute 
 the sovereign power, may be divided (Book I. 31, 45), if 
 such be the will of the nation. It may then happen that a 
 nation does not intrust her chief with a right so dangerous to 
 her liberty as that of raising and supporting troops, or at 
 least that she limits the exercise of it, by making it depend 
 on the consent of her representatives. The king of England, 
 who has the right of making war, has also, indeed, that of 
 granting commissions for raising troops ; but he cannot com- 
 
 l any person to enlist, nor, without the concurrence of par- 
 
 ment, keep an army on foot. (140) 
 
 Every citizen is bound to serve and defend the state as far as g g. obiiga- 
 he is capable. (140) Society cannot otherwise be maintained ; tion of the 
 and this concurrence for the common defence is one of the citi * ensor - 
 principal objects of every political association. Every man 
 
 (139) But semble, that anciently the 346 ; 2 Camp. 320, and see Barring- 
 
 king might press men to serve on land ton's Observations on Ancient Statutes, 
 
 as soldiers. Barrington's Observations 334, 5 edit. ; 1 Bla. Com. 420, n. 13. It 
 
 on Ancient Statutes, 334. The right should seem that every passenger on 
 
 of pressing men to serve in the Navy board a merchant ship is bound to 
 
 constitutes an exception. Its legality assist in her defence ; and if he refuse, 
 
 cannot now be effectually disputed, per he may be confined until all danger from 
 
 Lord Mansfield, King v. Jubbn, Cowp. the attack has subsided. Boyce v. 
 
 517 ; per Lord Kenyon, 5 Term R. Bailiff, 1 Campb. 60. C. 
 276 ; 9 East, 466 ; 5 East, 477 ; 14 East, (140) See note (139) ante. 
 
 395 
 
 pe 
 lia
 
 294 OF THE INSTRUMENTS OF WAR, ETC. 
 
 in. capable of carrying arms should take them up at the first 
 
 order of him who has the power of making war. 
 Enlist- In former times, and especially in small states, immediately 
 ing or rais- on a declaration of war, every man became a soldier ; the 
 mgof troops. W j 10 j e commun ity took up arms, and engaged in the war. Soon 
 after, a choice was made, and armies were formed of picked 
 men, the remainder of the p v eople pursuing their usual occu- 
 pations. At present, the use of regular troops is almost 
 everywhere adopted, especially in powerful states. The 
 public authority raises soldiers, distributes them into different 
 bodies under the command of generals and other officers, and 
 keeps them on foot as long as it thinks necessary. As every 
 citizen or subject is bound to serve the state, the sovereign 
 has a right to enlist whom he pleases. But he ought to 
 choose such only as are fit for the occupation of war ; and it 
 is highly proper that he should, as far as possible, confine 
 his choice to volunteers, who enlist without compulsion, 
 jj 10. Whe- No person is naturally exempt from taking up arms in de- 
 ther there fence of the state, the obligation of every member of society 
 emTionT" b em g tne same - Those alone are excepted, who are in-- 
 from carry- capable of handling arms, or supporting the fatigues of war. 
 ing arms. This is the reason why old men, children, and women are ex- 
 [ 295 ] empted. Although there be some women who are equal to 
 men in strength and courage, such instances are not usual; 
 and rules must necessarily be general, and derived from the 
 ordinary course of things. Besides, women are necessary for 
 other services in society ; and, in short, the mixture of both 
 sexes in armies would be attended with too many inconveniences. 
 A good government should, as far as possible, so employ 
 all the citizens, and distribute posts and employments in such 
 manner, that the state may be most effectually served in all 
 its affairs. Therefore, when not urged by necessity, it should 
 exempt from military service all those who are employed in 
 stations useful or necessary to society. Upon this ground, 
 magistrates are usually exempted, their whole time not 
 being too much for the administration of justice and the 
 maintenance of order. 
 
 The clergy cannot naturally, and, as matter of right, arro- 
 gate to themselves any peculiar exemption. To defend one's 
 country is an action not unworthy of the most sacred hands. 
 That article of the canon law which forbids ecclesiastics to 
 shed blood, is a convenient device to exempt from personal 
 danger those men who are often so zealous to fan the flame 
 of discord and excite bloody wars. Indeed, for the same rea- 
 sons which we have above alleged in favour of magistrates, 
 an exemption from bearing arms should be allowed to such 
 of the clergy as are really useful, to those who are employed 
 in teaching religion, governing the church, and celebrating 
 the public worship.* 
 
 * Formerly bishops went to war in yirtue of their fiefs, and led with them
 
 OF THE INSTRUMENTS OF WAR, ETC. 295 
 
 But those immense multitudes of useless monks and friars, BOOK m. 
 those drones, who, under pretence of dedicating themselves CHAP ' "' 
 to God, dedicate themselves in fact to sloth and effeminacy, 
 by what right do they pretend to a prerogative that is ruinous 
 to the state ? And if the prince exempts them from military 
 service, is he not guilty of injustice to the other members, on 
 whom he thus throws the whole burthen ? I do not here 
 mean to advise a sovereign to fill his armies with monks, but 
 gradually to diminish a useless class of men, by depriving 
 them of injurious and ill-founded privileges. History men- 
 tions a martial bishop* whose weapon was a club, with which [ 296 ] 
 he knocked down the enemy, to avoid incurring the censure 
 of the canon law by shedding their blood. It would be 
 much more reasonable, when monks are exempted from carry- 
 ing arms, that they should be employed in the work as pioneers, 
 and thus made to alleviate the toil of the soldiers. They have, 
 on many occasions, zealously undertaken the task in cases 
 of necessity. I could mention more than one famous siege 
 where monks have usefully served in defence of their country. 
 When the Turks besieged Malta, the ecclesiastics, the women, 
 the very children, all, according to their respective strength 
 or capacity, contributed to that glorious defence, which baffled 
 the utmost efforts of the Ottoman empire. 
 
 There is another class of idle drones, whose exemption is 
 a still more glaring abuse, I mean those swarms of useless 
 footmen who crowd the dwellings of the great and the wealthy, 
 and who, by the very nature of their employment, are them- 
 selves corrupted in displaying the luxury of their masters. 
 
 Among the Romans, while every citizen took his turn to ? n. Sol- 
 serve in the army, their service was gratuitous. But when a diers ' P a ? 
 choice is made, and standing armies are kept on foot, the state ^ quar ~ 
 is bound to pay them, as no individual is under an obligation 
 to perform more than his quota of the public service : and if 
 the ordinary revenues are not sufficient for the purpose, the 
 deficiency must be provided for by taxation. It is but rea- 
 sonable that those who do not serve should pay their defenders. 
 
 them their vassals. The Danish bishops the attack of the pass of Susa. This is 
 were not inattentive to a function which an abuse which the church very justly 
 pleased them better than the peaceful opposes. A bishop makes a better ap- 
 cares of episcopacy. The famous Ab- pearance in his proper station, m his 
 salom, bishop of Roschild, and after- diocese, than in the army; and, at 
 wards archbishop of Lunden, was the present, sovereigns are in no want of 
 principal general of king Waldemar I. generals and officers, who will perform 
 And since the use of regular troops has more useful services than can be ex- 
 superseded that feudal service, there pected from churchmen. In short, let 
 have not been wanting some martial every person keep to his vocation. All 
 prelates who eagerly courted the com- I dispute with the clergy, is their ex- 
 mand of armies. The cardinal De la emption as matter of right and in cases 
 
 Valette, and Sourdis, archbishop of of necessity. Ed. 1797. 
 
 Bourdeaux, appeared in arms under the * A bishop of Beauvais, under Philip 
 
 ministry of cardinal Richelieu, who also Augustus. He fought at the battle of 
 
 acted himself in a military capacity at Bouvines. 
 
 2Y 397
 
 IAP. II. 
 
 OF THE INSTRUMENTS OF WAR, ETC. 
 
 in. When the soldier is not in the field, he must necessarily be 
 provided with quarters. The burthen, in such case, naturally 
 falls on housekeepers : but as that is attended with many in- 
 conveniences, and proves very distressing to the citizens, it 
 becomes a good prince, or a wise and equitable government, 
 to ease them of it as far as possible. In this particular, the 
 king of France has made magnificent and ample provision in 
 many towns, by the erection ofbarracks for the accommodation 
 of the garrison. 
 
 g 12. Hos- The asylums prepared for indigent soldiers and officers 
 pitaisfor W h are grown gray in the service, and whom toil or the 
 invalids. en emy's sword has rendered incapable of providing for their 
 own subsistence, may be considered as part of the military pay. 
 In France and England, magnificent establishments have been 
 made in favour of invalids, which, while they discharge a debt 
 of a sacred nature, do honour to the sovereign and the nation. 
 The care of those unfortunate victims of war is the indis- 
 pensable duty of every state, in proportion to its ability. 
 It is repugnant, not only to humanity, but to the strictest 
 justice, that generous citizens, heroes who have shed their 
 blood for the safety of their country, should be left to perish 
 with want, or unworthily forced to beg their bread. The 
 honourable maintenance of such persons might very properly 
 be imposed upon rich convents and large ecclesiastical benefices. 
 Nothing can be more just than that those citizens who avoid 
 [ 297 ] all the dangers of war, should bestow part of their riches for 
 
 the relief of their valiant defenders. 
 
 13. Mer- Mercenary soldiers are foreigners voluntarily engaging to 
 eenary sol- serve the state for money, or a stipulated pay. As they owe 
 diers. no serv i ce to a sovereign whose subjects they are not, the 
 advantages he offers them are their sole motive. By en- 
 listing, they incur the obligation to serve him ; and the prince, 
 on his part, promises them certain conditions, which are settled 
 in the articles of enlistment. Those articles, being the rule 
 and measure of the respective obligations and rights of 
 the contracting parties, are to be religiously observed. 
 The complaints of some French historians against the 
 Swiss troops, who on several occasions formerly refused 
 to march against the enemy, and even withdrew from the 
 service, because they were not paid, those complaints, I 
 say, are equally ridiculous and unjust. Why should the 
 articles of enlistment be more strongly binding on one of the 
 parties than on the other? Whenever the prince fails to 
 perform what he has promised, the foreign soldiers are dis- 
 charged from any further duty to him. I own it would be 
 ungenerous to forsake a prince who, without any fault on his 
 own part, is by accident alone rendered for a while unable 
 to make good his payments. There may even be occasions 
 when such an inflexibility on the part of the soldier would be, 
 if not contrary to strict justice, at least very repugnant to
 
 OF THE INSTRUMENTS OF WAR, ETC. 297 
 
 equity. But this was never the case with the Switzers : they BOOK m. 
 never were known to quit the service on the first failure of CHAP - "i. 
 payment ; and when they perceived the good intentions of a 
 sovereign labouring under a real inability to satisfy them, 
 their patience and zeal always supported them under such 
 difficulties. Henry the Fourth owed them immense sums: 
 yet they did not, in his greatest necessities, abandon him ; 
 and that hero found the nation equally generous as brave. 
 I here speak of the Switzers, because, in fact, those above 
 alluded to were often mere mercenaries. But a distinction 
 is to be made between troops of this kind and those Switzers 
 who at present serve different powers, and with the permission 
 of their sovereign, and in virtue of alliances subsisting between 
 those powers and the Helvetic body, or some particular can- 
 ton. The latter are real auxiliaries, though paid by the sove- 
 reigns whom they serve. 
 
 Much has been said on the question Whether the pro- 
 fession of a mercenary soldier be lawful or not ? Whether 
 individuals may, for money or any other reward, engage to 
 serve a foreign prince in his wars ? This question does not 
 to me appear very difficult to be solved. Those who enter 
 into such engagements without the express or tacit consent 
 of their sovereign, offend against their duty as citizens. But 
 if their sovereign leaves them at liberty to follow their in- 
 clination for a military life, they are perfectly free in that 
 respect. Now, every free man may join whatever society he 
 pleases, according as he finds it most to his advantage. He [ 298 ] 
 may make its cause his own, and espouse its quarrels. He 
 becomes in some measure, at least for a time, a member of 
 the state in whose service he engages : and as an officer is 
 commonly at liberty to quit the service when he thinks 
 proper, and the private soldier at the expiration of his en- 
 gagement, if that state embark in a war which is evidently 
 unjust, the foreigner may quit its service. And the mer- 
 cenary soldier, having now learned the art of war, has 
 rendered himself more capable of serving his country, if ever 
 she require his assistance. This last consideration will fur- 
 nish us with an answer to a question proposed on this head 
 Whether the sovereign can with propriety permit his subjects 
 to serve foreign powers indiscriminately for money ? He can 
 for this simple reason that his subjects will thus learn an 
 art, of which a thorough knowledge is both useful and neces 
 sary. The tranquillity, the profound peace which Switzerland 
 has so long enjoyed in the midst of all the commotions and 
 wars Avhich have agitated Europe, that long repose would 
 soon become fatal to her, did not her citizens, by serving 
 foreign princes, qualify themselves for the operations of war, 
 %nd keep alive their martial spirit. 
 
 Mercenary soldiers enlist voluntarily. The sovereign has 14. What 
 no right to compel foreigners : he must not even employ strata- i to bo ob- 
 
 399
 
 298 OF THE INSTRUMENTS OF WAR, ETC. 
 
 BOOK in. gem or artifice, in order to induce them to engage in a con- 
 . C:IAP- "' tract, which like all others, should be founded on candour and 
 
 good faith. 
 
 their enlist- ^- s ^ e right of levying soldiers belongs solely to the nation 
 
 ment. or the sovereign ( 7), no person must attempt to enlist soldiers, 
 
 ^ 15. En- in a foreign country, without the permission of the sovereign ; 
 
 listing in and, even with that permission, none but volunteers are to be 
 
 countries existed ; for the service of their country is out of the question 
 
 here ; and no sovereign has a right to give or sell his subjects 
 
 to another. 
 
 The man who undertakes to enlist soldiers in a foreign 
 country, without the sovereign's permission, and, in gene- 
 ral, whoever entices away the subjects of another state, 
 violates one of the most sacred rights of the prince and the 
 nation. This crime is distinguished by the name of kid- 
 napping, or man-stealing, and is punished with the utmost 
 severity in every well-regulated state. Foreign recruiters 
 are hanged without mercy, and with great justice. It is not 
 presumed that their sovereign has ordered them to commit a 
 crime ; and, supposing even that they had received such an 
 order, they ought not to have obeyed it, their sovereign 
 having no right to command what is contrary to the law of 
 nature. It is not, I say, presumed that these recruiters act 
 by order of their sovereign ; and with respect to such of them 
 as have practised seduction only, it is generally thought suffi- 
 cient to punish them when they can be detected and caught : 
 if they have used violence, and made their escape, it is usual 
 to demand a surrender of the delinquents, and to claim the 
 persons they have carried off. But if it appears that they 
 I" 299 1 acted by order, such a proceeding in a foreign sovereign 
 is justly considered as an injury, and as a sufficient cause 
 for declaring war against him, unless he makes suitable 
 reparation. 
 
 \ 16. Obiu All soldiers, natives or foreigners, are to take an oath to 
 gation of serve faithfully, and not desert the service. This is no more 
 soldiers. ^an ^^ ^QJ are a l rea( Jj obliged to, the former as subjects, 
 the latter by their engagement ; but their fidelity is of so 
 great importance to the state, that too many precautions cannot 
 be taken for rendering it secure. Deserters merit severe and 
 exemplary punishment ; and the sovereign may, if he thinks 
 it necessary, annex the penalty of death to desertion. The 
 emissaries who solicit them to desert are far more guilty 
 than the recruiters mentioned in the preceding section. 
 \ 17. Mm- Good order and subordination, so useful in all places, are 
 tarylaws. nowhere so necessary as in the army. The sovereign 
 should exactly specify and determine the functions, duties, 
 and rights of military men, of soldiers, officers, commanders 
 of corps, and generals. He should regulate and fix the au- 
 thority of commanders in all the gradations of rank, the 
 punishments to be inflicted on offenders, the form of trials,
 
 OF THE INSTRUMENTS OF WAR, ETC. 299 
 
 &c. The laws and ordinances relative to these several par- BOOK m. 
 ticulars form the military code. CHAP - " . 
 
 Those regulations, whose particular tendency is to main- 
 tain order among the troops, and to enable them to perform 
 their military service with advantage to the state, constitute 18 - MilJ - 
 what is called military discipline. This is of the highest *"* disci - 
 importance. The Switzers wejre the first among the modern p " 
 nations that revived it in its ancient vigour. It was a good 
 discipline, added to the valour of a free people, that produced, 
 even in the infancy of their republic, those brilliant achieve- 
 ments which astonished all Europe. Machiavel says that the 
 Switzers are the masters of all Europe in the art of war.* 
 In our times, the Prussians have shown what may be expected 
 from good discipline and assiduous exercise : soldiers, collected 
 from all quarters, have, by the force of habit, and the in- 
 fluence of command, performed all that could be expected 
 from the most zealous and loyal subjects. 
 
 Every military officer, from the ensign to the general, en- 
 joys the rights and authority assigned him by the sovereign ; 
 and the will of the sovereign, in this respect, is known by his ? 19- SuW- 
 express declarations, contained either in the commissions he d* 11 ** P W - 
 confers or in the military code, or is, by fair deduction, in- ers 
 ferred from the nature of the functions assigned to each 
 officer ; for every man who is intrusted with an employment is 
 presumed to be invested with all the powers necessary to 
 enable him to fill his station with propriety, and successfully 
 discharge the several functions of his office. 
 
 Thus, the commission of a commander in chief, when it is 
 simple and unlimited, gives him an absolute power over the 
 army a right to march it whither he thinks proper, to un- 
 dertake such operations as he finds conducive to the service 
 of the state, &c. It is true, indeed, that the powers of a 
 general are often limited ; but the example of Marshal Turenne 
 sufficiently shows, that, when the sovereign is certain of having [ 800 3 
 made a good choice, the best thing he can do in this respect 
 is to give the general an unlimited power. Had the opera- 
 tions of the Duke of Marlborough depended on the directions 
 of the cabinet, there is little probability that all his campaigns 
 would have been crowned with such distinguished success. 
 
 When a governor is besieged in the place where he com- 
 mands, and all communication with his sovereign is cut off, 
 that very circumstance confers on him the whole authority 
 of the state, so far as respects the defence of the town and 
 the safety of the garrison. 
 
 These particulars merit the utmost attention, as they fur- 
 nish a principle for determining what the several commanders, 
 who are the subordinate or inferior powers in war, may exe- 
 cute with sufficient authority. Exclusive of the consequences 
 
 * Disc, on Liyy. 
 51 2i2 401
 
 300 OP THE INSTRUMENTS OF WAR, ETC. 
 
 BOOK in. which may be deduced from the very nature of their employ- 
 . CHAPl " ments, we are likewise to consider the general practice and 
 established usage in this respect. If it be a known fact, that, 
 m the service of a particular nation, officers of a certain rank 
 have been uniformly invested with such or such powers, it 
 may reasonably be presumed that the person we are engaged 
 with is furnished with the same powers. 
 
 g 20. How Every promise made by any of the subordinate powers, by 
 their pro- any commander within his department, in conformity to the 
 muses bi- * terms of his commission and to the authority which he natu- 
 rei p. ' rally derives from his office and the functions intrusted to his 
 ;are, every such promise, I say, is, for the reasons above 
 alleged, made in the name and by the authority of the sove- 
 reign, and equally obligatory on him as if he had himself per- 
 sonally made it. Thus, a governor capitulates for the town 
 which he commands, and for the garrison ; and what he has 
 promised, the sovereign cannot invalidate. In the last war, 
 the general who commanded the French at Lintz, engaged to 
 march back his troops on this side the Rhine. Governors of 
 towns have often promised that, for a limited time, their gar- 
 risons should not carry arms against the enemy with whom 
 they capitulated : and these capitulations have always been 
 faithfully observed. 
 
 g 21. In But, if a subordinate power allows himself a greater lati- 
 
 what cases tude, and exceeds the authority annexed to his office, his 
 
 mijes^ind P rom ^ se becomes no more than a private engagement, or what 
 
 only them- ' ls called sponsio, of which we have already treated. (Book 
 
 selves. II. Chap. XIV.) This was the case with the Roman consuls 
 
 at the Furcse Caudinse. They might, indeed, agree to deliver 
 
 hostages, and that their army should pass under the yoke, 
 
 &c., but they were not authorized to conclude a peace, as 
 
 they took care to signify to the Samnites. 
 
 g 22. Their If a subordinate power assumes an authority which he does 
 assumption not possess, and thus deceives the party treating with him, 
 of an au- though an enemy, he is naturally responsible for the damage 
 wbicifthey cause d by his deception, and bound to make reparation. I 
 donotpos- say "though an enemy:" for the faith of treaties is to be ob- 
 sess, served between enemies, as all men of principle agree, and as 
 we shall prove in the sequel. The sovereign of that fraudu- 
 [ 301 ] lent officer ought to punish him, and oblige him to repair his 
 fault : it is a duty which the prince owes to justice, and to 
 his own character. 
 
 g 23. How Promises made by a subordinate power are obligatory on 
 they bind those who are subject to his control, and bind them in every 
 their in- particular in which he is authorized and accustomed to com- 
 lors ' mand their obedience : for, with respect to such particulars, 
 he is vested with the sovereign authority, which his inferiors 
 are bound to respect in his person. Thus, in a capitulation, 
 the governor of a town stipulates and promises for his garri- 
 son, and even for the magistrates and citizens. 
 
 402
 
 OF THE JUST CAUSES OF WAR. 301 
 
 CHAP. III. 
 
 OF THE JUST CAUSES OF WAR. (141) 
 
 BOOK III. 
 CHAP. III. 
 
 WHOEVER entertains a true idea of war, whoever con- \ 24. War 
 aiders its terrible effects, its destructive and unhappy conse- ^ver to be 
 quences, will readily agree that it should never be undertaken undertaken 
 
 ' , / < without 
 
 without the most cogent reasons. Humanity revolts against very C0( , ent 
 a sovereign, who, without necessity or without very powerful reasons? 
 reasons, lavishes the blood of his most faithful subjects, and 
 exposes his people to the calamities of war, when he has it in 
 his power to maintain them in the enjoyment of an honour- 
 able and salutary peace. And if to this imprudence, this 
 want of love for his people, he moreover adds injustice to- 
 wards those he attacks, of how great a crime, or rather, of 
 what a frightful series of crimes, does he not become guilty ! 
 Responsible for all the misfortunes which he draws down on 
 his own subjects, he is moreover loaded with the guilt of all 
 those which he inflicts on an innocent nation. The slaughter 
 of men, the pillage of cities, the devastation of provinces, 
 such is the black catalogue of his enormities. He is respon- 
 sible to God, and accountable to human nature, for every 
 individual that is killed, for every hut that is burned down. 
 The violences, the crimes, the disorders of every kind, atten- 
 dant on the tumult and licentiousness of war, pollute his 
 conscience, and are set down to his account, as he is the origi- 
 nal author of them all. Unquestionable truths ! alarming 
 ideas ! which ought to affect the rulers of nations, and, in all 
 their military enterprises, inspire them with a degree of cir- 
 cumspection proportionate to the importance of the subject ! 
 
 Were men always reasonable, they would terminate their 25. Justi- 
 contests by the arms of reason only: natural justice and ficatoi r rea - 
 equity would be their rule, or their judge. Force is a^' v " for 
 wretched and melancholy expedient against those who spurn making 
 at justice, and refuse to listen to the remonstrances of reason: war. 
 but, in short, it becomes necessary to adopt that mode, when [ 302 ] 
 every other proves ineffectual. It is only in extremities that 
 a just and wise nation, or a good prince, has recourse to it, as 
 we have shown in the concluding chapter of the second book. 
 The reasons which may determine him to take such a step are 
 of two classes. Those of the one class show that he has a 
 right to make war, that he has just grounds for undertaking 
 it : these are called justificatory reasons. The others, found- 
 ed on fitness and utility, determine whether it be expedient 
 for the sovereign to undertake a war, these are called mo- 
 tives. 
 
 (141) See further, as to what are, or to be here applicable, pott, B. 4, ch. 4, 
 are not, just causes for rescinding a g 44, 45, p. 449. 
 treaty of peace, and which seem also
 
 802 OP THE JUST CAUSES OF WAR. 
 
 BOOK. in. The right of employing force, or making war, belongs to 
 CHAP. in. nat i ons no f ar ther than is necessary for their own defence, 
 
 I 26. What and for the maintenance of their rights ( 3). Now, if any 
 is in gene- one attacks a nation, or violates her perfect rights, he does 
 ?u*eof war. ^ er an ^ n j ur 7- Then, and not till then, that nation has a 
 right to repel the aggressor, and reduce him to reason. 
 Further, she has a right to prevent the intended injury, when 
 she sees herself threatened with it (Book II. 50). Let us 
 then say in general, that the foundation, or cause of every 
 just war is injury, either already done or threatened. The 
 justificatory reasons for war show that an injury has been re- 
 ceived, or so far threatened as to authorize a prevention of it 
 by arms. It is evident, however, that here the question re- 
 gards the principal in the war, and not those who join in it 
 as auxiliaries. When, therefore, we would judge whether a 
 war be just, we must consider whether he who undertakes it 
 has in fact received an injury, or whether he be really threat- 
 ened with one. And, in order to determine what is to be con- 
 sidered as an injury, we must be acquainted with a nation's 
 rights, properly so called, that is to say, her perfect rights. 
 These are of various kinds, and very numerous, but may all 
 be referred to the general heads of which we have already 
 treated, and shall further treat in the course of this work. 
 Whatever strikes at these rights is an injury, and a just cause 
 of war. 
 
 27. What The immediate consequence of the premises is, that if a na- 
 
 war is un- tion takes up arms when she has received no injury, nor is 
 
 J ust threatened with any, she undertakes an unjust war. Those 
 
 alone, to whom an injury is done or intended, have a right to 
 
 make war. 
 
 $ 28. The From the same principle we shall likewise deduce the just 
 object of an( j lawful object of every war, which is, to avenge or pre- 
 vent injury. To avenge signifies here to prosecute the repa- 
 ration of an injury, if it be of a nature to be repaired, or, if 
 the evil be irreparable, to obtain a just satisfaction, and also 
 to punish the offender, if requisite, with a view of providing 
 for our future safety. The right to security authorizes us to 
 do all this (Book II. 4952). We may therefore distinct- 
 ly point out, as objects of a lawful war, the three follow- 
 ing : 1. To recover what belongs, or is due to us. 2. To 
 provide for our future safety by punishing the aggressor or 
 offender. 3. To defend ourselves, or to protect ourselves from 
 [ 303 ] injury, by repelling unjust violence. The two first are the 
 objects of an offensive, the third of a defensive war. Camil- 
 lus, when on the point of attacking the Gauls, concisely set 
 forth to his soldiers all the subjects on which war can be 
 grounded or justified omnia, quce defendi, repetique, et 
 ulciscifas sit.* 
 
 * Livy, lib. v. cap. 49.
 
 OF THE JUST CAUSES OF WAR. 803 
 
 As the nation, or her ruler, ought, in every undertaking, BOOK im 
 not only to respect justice, but also to keep in view the ad- CHAP ' m ' 
 vantage of the state, it is necessary that proper and com- 29 - Both 
 mendable motives should concur with the justificatory reasons, ^jj, *^ 
 to induce a determination to embark in a war. These rea- pr^^mo- 
 sous show that the sovereign has a right to take up arms, tives requi- 
 that he has just cause to do so. The proper motives show, site in un- 
 that in the present case it is advisable and expedient to make ^ e a r r takins a 
 use of his right. These latter relate to prudence, as the 
 justificatory reasons come under the head of justice. 
 
 I call proper and commendable motives those derived from so. Proper 
 the good of the state, from the safety and common advantage motives, 
 of the citizens. They are inseparable from the justificatory 
 reasons, a breach of justice being never truly advantageous. 
 Though an unjust war may for a time enrich a state, and ex- 
 tend her frontiers, it renders her odious to other nations, and 
 exposes her to the danger of being crushed by them. Besides, 
 do opulence and extent of dominion always constitute the 
 happiness of states ? Amidst the multitude of examples 
 which might here be quoted, let us confine our view to that 
 of the Romans. The Roman republic ruined herself by her 
 triumphs, by the excess of her conquests and power. Rome, 
 when mistress of the world, but enslaved by tyrants and op- 
 pressed by a military government, had reason to deplore 
 the success of her arms, and to look back with regret on 
 those happy times when her power did not extend beyond the 
 bounds of Italy, or even when her dominion was almost con- 
 fined within the circuit of her walls. 
 
 Vicious motives are those which have not for their object Vicious 
 the good of the state, and which, instead of being drawn from motives, 
 that pure source, are suggested by the violence of the passions. 
 Such are the arrogant desire of command, the ostentation of 
 power, the thirst of riches, the avidity of conquest, hatred, 
 and revenge. 
 
 The whole right of the nation, and consequently of the 31. war 
 sovereign, is derived from the welfare of the state ; and by undertaken 
 this rule it is to be measured. The obligation to promote and u P n J ust 
 maintain the true welfare of the society or state gives the JJJ u j* 
 nation a right to take up arms against him who threatens or vicious mo, 
 attacks that valuable enjoyment. But if a nation, on an in- tives. 
 jury done to her, is induced to take up arms, not by the ne- [ 304 ] 
 cessity of procuring a just reparation, but by a vicious motive, 
 she abuses her right. The viciousness of the motive tarnishes 
 the lustre of her arms, which might otherwise have shone in 
 the cause of justice : the war is not undertaken for the law- 
 ful cause which the nation had to engage in it : that cause is 
 now no more than a pretext. As to the sovereign in particu- 
 lar, the ruler of the nation what right has he to expose the 
 safety of the state, with the lives and fortunes of the citizens, 
 to gratify his passions ? It is only for the good of the nation 
 
 405
 
 304 OP THE JUST CAUSES OP WAR. 
 
 BOOK in. that the supreme power is intrusted to him ; and it is with 
 _CHAP.JII^ t na t y j ew tnat h e ^gi^ to exert ^ . that i s the O kj ec t p re . 
 
 scribed to him even in his least important measures : and shall 
 he undertake the most important and the most dangerous, 
 from motives foreign or contrary to that great end ? Yet 
 nothing is more common than such a destructive inversion of 
 views ; and it is remarkable, that, on this account, the judicious 
 Polybius gives the name of causes* to the motives on which 
 war is undertaken, and of pretexts^ to the justificatory rea- 
 sons alleged in defence of it. Thus he informs us that the 
 cause of the war which Greece undertook against the Persians 
 was the experience she had had of their weakness, and that 
 the pretext alleged by Philip, or by Alexander after him, was 
 the desire of avenging the injuries which the Greeks had so 
 often suffered, and of providing for their future safety. 
 g 32. Pre- Let us, however, entertain a better opinion of nations and 
 texts. their rulers. There are just causes of war, real justificatory 
 reasons ; and why should there not be sovereigns who sincerely 
 consider them as their warrant, when they have besides rea- 
 sonable motives for taking up arms ? We shall therefore give 
 the name of pretexts to those reasons alleged as justificatory, 
 but which are so only in appearance, or which are even abso- 
 lutely destitute of all foundation. The name of pretexts may 
 likewise be applied to reasons which are, in themselves, true 
 and well-founded, but, not being of sufficient importance for 
 undertaking a war, are made use of only to cover ambitious 
 views, or some other vicious motive. Such was the complaint 
 of the czar Peter I. that sufficient honours had not been paid 
 him on his passage through Riga. His other reasons for de- 
 claring war against Sweden I here omit. 
 
 Pretexts are at least a homage which unjust men pay to 
 justice. He who screens himself with them shows that he 
 still retains some sense of shame. He does not openly 
 trample on what is most sacred in human society : he tacitly 
 acknowledges that a flagrant injustice merits the indignation 
 of all mankind. 
 
 g 33. War Whoever, without justificatory reasons, undertakes a war 
 
 undertaken merely from motives of advantage, acts without any right, 
 
 adTanta^e &n ^ ^ a war * s un j us * ; ' And ^e, who, having in reality just 
 
 grounds for taking up arms, is nevertheless solely actuated 
 
 by interested views in resorting to hostilities, cannot indeed 
 
 be charged with injustice, but he betrays a vicious disposition : 
 
 his conduct is reprehensible, and sullied by the badness of 
 
 his motives. War is so dreadful a scourge, that nothing less 
 
 than manifest justice, joined to a kind of necessity, can 
 
 authorize it, render it commendable, or at least exempt it from 
 
 reproach. 
 
 g 34. Na- Nations that are always ready to take up arms on any pros- 
 
 * Ainui. Histor. lib. iii. cap. 6. 
 406
 
 make war 
 t rea- 
 
 OF THE JUST CAUSES OF WAR. 305 
 
 pect of advantage, are lawless robbers : but those who seem BOOK m. 
 to delight in the ravages of war, who spread it on all sides, CHAP - m - 
 without reasons or pretexts, and even without any other mo- tions wh 
 tive than their own ferocity, are monsters, unworthy the name m . 
 of men. They should be considered as enemies to the human gon or ap _ 
 race, in the same manner as, in civil society, professed assas- parent mo 
 sins and incendiaries are guilty, not only towards the parti- tives - 
 cular victims of their nefarious deeds, but also towards the 
 state, which therefore proclaims them public enemies. All 
 nations have a right to join in a confederacy for the purpose 
 of punishing and even exterminating those savage nations. 
 Such were several German tribes mentioned by Tacitus 
 such those barbarians who destroyed the Roman empire : nor 
 was it till long after their conversion to Christianity that this 
 ferocity wore off. Such have been the Turks and other Tar- 
 tars Genghis-khan, Timur Bee or Tamerlane, who, like At- 
 tila, were scourges employed by the wrath of Heaven, and who 
 made war only for the pleasure' of making it. Such are, in po- 
 lished ages and among the most civilized nations, those supposed 
 heroes, whose supreme delight is a battle, and who make war 
 from inclination purely, and not from love to their country. 
 
 Defensive war is just when made against an unjust aggres- ? 35 - Ho 
 sor. This requires no proof. Self-defence against unjust defensiye 
 violence is not only the right, but the duty of a nation, and ^unjust!' 
 one of her most sacred duties. But if the enemy who wages 
 offensive war has justice on his side, we have no right to 
 make forcible opposition ; and the defensive war then be- 
 comes unjust : for that enemy only exerts his lawful right : 
 he took arms only to obtain justice which was refused to him ; 
 and it is an act of injustice to resist any one in the exertion 
 of his right. 
 
 All that remains to be done in such a case is, to offer the ? 36 - H ' 
 invader a just satisfaction. If he will not be content with lt ma ^ be ~ 
 this, a nation gains one great advantage that of having ag^nst^n 
 turned the balance of justice on her own side; and his hos- offensive 
 tilities, now becoming unjust, as having no longer any founda- war which 
 tion, may very justly be opposed. ** first waa 
 
 The Samnites, instigated by the ambition of their chiefs, just " 
 had ravaged the lands of the allies of Rome. When they 
 became sensible of their misconduct, they offered full repara- 
 tion for the damages, with every reasonable satisfaction : but 
 all their submissions could not appease the Romans ; where- 
 upon Caius Pontius, general of the Samnites, said to his men, 
 " Since the Romans are absolutely determined on war, neces- 
 sity justifies it on our side ; an appeal to arms becomes 
 lawful on the part of those who are deprived of every other 
 resource." Justum est bellum, quibus necessarium; et pia 
 arma, quibus nulla nisi in armis relinquitur spes.* 
 
 * Livy, lib. ix. kit 
 
 407
 
 305 OF THE JUST CAUSES OF WAR. 
 
 BOOK. m. In order to estimate the justice of an offensive war, the 
 CHAP. m._ na t ure O f the subject for which a nation takes up arms must 
 2 37. How b e nrs t considered. We should be thoroughly assured of our 
 wari?ust e r *& nt ' De fb re we proceed to assert it in so dreadful a manner. 
 i^Ju^evi- If? therefore, the question relates to a thing which is evident- 
 dent cause, ly just, as the recovery of our property, the assertion of a 
 [ 306 ] clear and incontestable right, or the attainment of just satis- 
 faction for a manifest injury, and if we cannot obtain justice 
 otherwise than by force of arms, offensive war .becomes law- 
 ful. Two things are therefore necessary to render it just : 
 1, some right which is to be asserted that is to say, that we 
 be authorized to demand something of another nation : 2, 
 that we be unable to obtain it otherwise than by force of 
 arms. Necessity alone warrants the use of force. It is a 
 dangerous and terrible resource. Nature, the common pa- 
 rent of mankind, allows of it only in cases of the last ex- 
 tremity, and when all other means fail. It is doing wrong to 
 a nation, to make use of violence against her, before we know 
 whether she be disposed to do us justice, or to refuse it. 
 
 Those who, without trying pacific measures, run to arms 
 on every trifling occasion, sufficiently show that justificatory 
 reasons are, in their mouths, mere pretexts : they eagerly 
 seize the opportunity of indulging their passions and gratify- 
 ing their ambition under some colour of right. 
 
 38. In a In a doubtful cause, where the rights are uncertain, ob- 
 doubtfui scure and disputable, all that can be reasonably required 
 o*" 86 - is, that the question be discussed (Book II. 331), and that, 
 if it be impossible fully to clear it up, the contest be termi- 
 nated by an equitable compromise. If, therefore, one of the 
 parties should refuse to accede to such conciliatory measures, 
 the other is justifiable in taking up arms to compel him to an 
 accommodation. And we must observe, that war does not 
 decide the question : victory only compels the vanquished to 
 subscribe to the treaty which terminates the difference. It is 
 an error, no less absurd than pernicious, to say that war is to 
 decide controversies between those who acknowledge no supe- 
 rior judge as is the case with nations. Victory usually fa- 
 vours the cause of strength and prudence, rather than that 
 of right and justice. It would be a bad rule of decision ; but 
 it is an effectual mode of compelling him who refuses to ac- 
 cede to such measures as are consonant to justice ; and it 
 becomes just in the hands of a prince who uses it seasonably, 
 and for a lawful cause. 
 
 39. War War cannot be just on both sides. One party claims a 
 cannot ba right ; the other disputes it : the one complains of an injury ; 
 
 J Sjs n b th *k e Ot ^ er ^ en ^ es nav ^ n g done it. They may be considered 
 as two individuals disputing on the truth of a proposition ; 
 and it is impossible that two contrary sentiments should be 
 true at the same time. 
 
 $ 40. Some- It may however happen that both the contending parties
 
 OF THE JUST CAUSES OF WAR. 306 
 
 are candid and sincere in their intentions ; and, in a doubtful BOOK in. 
 cause, it is still uncertain which side is in the right. Where- , CHAF - "* 
 fore, since nations are equal and independent (Book II. 36, times re - 
 and Prelim. 18, 19), and cannot claim a right of judgment jj tecU 
 over each other, it follows, that in every case susceptible of r ' 307 -j 
 doubt, the arms of the two parties at war are to be accounted 
 equally lawful, at least as to external effects, and until the 
 decision of the cause. But neither does that circumstance 
 deprive other nations of the liberty of forming their own 
 judgment on the case, in order to determine how they are to 
 act, and to assist that party who shall appear to have right on 
 his side ; nor does that effect of the independence of nations 
 operate in exculpation of the author of an unjust war, who 
 certainly incurs a high degree of guilt. But if he acts in 
 consequence of invincible ignorance or error, the injustice of 
 his arms is not imputable to him. 
 
 When offensive war has for its object the punishment of a 41. War 
 nation, it ought, like every other war, to be founded on right undertaken 
 and necessity. 1. On right : an injury must have been ac- ^ a ^" isl1 a 
 tually received. Injury alone being a just cause of war 
 ( 26), the reparation of it may be lawfully prosecuted : or 
 if, in its nature, it be irreparable (the only case in which we 
 are allowed to punish), we are authorized to provide for our 
 own safety, and even for that of all other nations, by inflict- 
 ing on the offender a punishment capable of correcting him, 
 and serving as an example to others. 2. A war of this kind 
 must have necessity to justify it : that is to say, that, to be 
 lawful, it must be the only remaining mode to obtain a just 
 satisfaction ; which implies a reasonable security for the time 
 to come. If that complete satisfaction be offered, or if it 
 may be obtained without a war, the injury is done away, and 
 the right to security no longer authorizes us to seek ven- 
 geance for it. (See Book II. 49, 52.) 
 
 The nation in fault is bound to submit to a punishment 
 which she has deserved, and to suffer it by way of atonement : 
 but she is not obliged to give herself up to the discretion of 
 an incensed enemy. Therefore, when attacked she ought to 
 make a tender of satisfaction, and ask what penalty is re- 
 quired ; and if no explicit answer be given, or the adversary 
 attempts to impose a disproportionate penalty, she then ac- 
 quires a right to resist, and her defence becomes lawful. 
 
 On the whole, however, it is evident that the offended party 
 alone has a right to punish independent persons. We shall 
 not here repeat what we have said elsewhere (Book II. 7) 
 of the dangerous mistake, or extravagant pretensions, of those 
 who assume a right of punishing an independent nation for 
 faults which do not concern them who, madly setting them- 
 selves up as defenders of the cause of God, take upon them 
 to punish the moral depravity, or irreligion, of a people not 
 committed to their superintendency. 
 
 52 2 K 409
 
 307 OF THE JUST CAUSES OF WAR, ETC. 
 
 BOOK in. Here a very celebrated question, and of the highest impor- 
 CHAP. m tance, presents itself. It is asked, whether the aggrandize- 
 
 42. Who- ment of a neighbouring power, by whom a nation fears she 
 ther the ag- ma y O ne day be crushed, be a sufficient reason for making 
 grandize- war a g a j ns t n i m whether she be justifiable in taking up 
 neighbour- arm3 to oppose his aggrandizement, or to weaken him, with 
 ingpower the sole view of securing herself from those dangers which 
 can autho- the weaker states have almost always reason to apprehend 
 ^ain T fr m an overgrown power. To the majority of politicians 
 im> this question is no problem : it is more difficult of solution to 
 [ 308 ] those who wish to see justice and prudence ever inseparably 
 united. 
 
 On the one hand, a state that increases her power by all 
 the arts of good government, does no more than what is com- 
 mendable she fulfils her duties towards herself without 
 violating those which she owes to other nations. The sove- 
 reign, who, by inheritance, by free election, or by any other 
 just and honourable means, enlarges his dominions by the ad- 
 dition of new provinces or entire kingdoms, only makes use 
 of his right, without injuring any person. How then should 
 it be lawful to attack a state which, for its aggrandizement, 
 makes use only of lawful means ? We must either have actu- 
 ally suffered an injury or be visibly threatened with one, 
 before we are authorized to take up arms, or have just 
 grounds for making war ( 26, 27). On the other hand, it is 
 but too well known, from sad and uniform experience, that 
 predominating powers seldom fail to molest their neighbours, 
 to oppress them, and even totally subjugate them, whenever 
 an opportunity occurs, and they can do it with impunity. 
 Europe was on the point of falling into servitude for want of 
 a timely opposition to the growing fortune of Charles V. Is 
 the danger to be waited for ? Is the storm, which might be 
 dispersed at its rising, to be permitted to increase ? Are we 
 to allow of the aggrandizement of a neighbour, and quietly 
 wait till he makes his preparations to enslave us ? Will it 
 be a time to defend ourselves when we are deprived of the 
 means ? Prudence is a duty incumbent on all men, and most 
 pointedly so on the heads of nations, as being commissioned 
 to watch over the safety of a whole people. Let us endea- 
 vour to solve this momentous question, agreeably to the sacred 
 principles of the law of nature and of nations. We shall find 
 that they do not lead to weak scruples, and that it is an inva- 
 riable truth that justice is inseparable from sound policy. 
 \ 43. Alone, And first, let us observe, that prudence, which is, no doubt, 
 and of itself, a virtue highly necessary in sovereigns, can never recommend 
 ^iveTrf ht t ^ ie use ^ un l aw f u l means for the attainment of a just and 
 toTttaci? laudable end. Let not the safety of the people, that supreme 
 him. law of the state, be alleged here in objection ; for the very 
 
 safety of the people itself, and the common safety of nations, 
 prohibit the use of means which are repugnant to justice and 
 
 410
 
 OF THE JUST CAUSES OF WAR, ETC. 308 
 
 probity. Why are certain means unlawful ? If we closely BOOK 1U - 
 consider the point, if we trace it to its first principles, we shall CHAP ' m ' 
 see that it is purely because the introduction of them would 
 be pernicious to human society, and productive of fatal con- 
 sequences to all nations. See particularly what we have said 
 concerning the observance of justice (Book II. Chap. V.). 
 For the interest, therefore, and even the safety of nations, 
 we ought to hold it as a sacred maxim, that the end does not 
 sanctify the means. And since war is not justifiable on any [ 309 ] 
 other ground than that of avenging an injury received, or 
 preserving ourselves from one with which we are threatened 
 ( 26), it is a sacred principle of the law of nations, that an 
 increase of power cannot, alone and of itself, give any one a 
 right to take up arms in order to oppose it. 
 
 No injury has been received from that power (so the question 2 44 - How 
 supposes) ; we must, therefore, have good grounds to think the a PP* ar - 
 ourselves threatened by him, before we can lawfully have re-^g S J give 
 course to arms. Now power alone does not threaten an in- that right 
 jury : it must be accompanied by the will. It is, indeed, 
 very unfortunate for mankind, that the will and inclination 
 to oppress may be almost always supposed, where there is a 
 power of oppressing with impunity. But these two things 
 are not necessarily inseparable : and the only right which we 
 derive from the circumstance of their being generally or fre- 
 quently united, is, that of taking the first appearances for a 
 sufficient indication. When once a state has given proofs of 
 injustice, rapacity, pride, ambition, or an imperious thirst of 
 rule, she becomes an object of suspicion to her neighbours, 
 whose duty it is to stand on their guard against her. They 
 may come upon her at the moment when she is on the point 
 of acquiring a formidable accession of power, may demand 
 securities, and if she hesitates to give them, may prevent 
 her designs by force of arms. The interests of nations are, 
 in point of importance, widely different from those of indi- 
 viduals : the sovereign must not be remiss in his attention to 
 them, nor suffer his generosity and greatness of soul to super- 
 sede his suspicions. A nation that has a neighbour at once 
 powerful and ambitious has her all at stake. As men are 
 under a necessity of regulating their conduct in most cases 
 by probabilities, those probabilities claim their attention in 
 proportion to the importance of the subject : and (to make 
 use of a geometrical expression) their right to obviate a dan- 
 ger is in a compound ratio of the degree of probability and 
 the greatness of the evil threatened. If the evil in question 
 be of a supportable nature, if it be only some slight loss, 
 matters are not to be precipitated : there is no great danger 
 in delaying our opposition to it till there be a certainty of 
 our being threatened. But if the safety of the state lies at 
 stake, our precaution and foresight cannot be extended too 
 far. Must we delay to avert our ruin till it is become inevi- 
 
 411
 
 309 OF THE JUST CAUSES OF WAR, ETC. 
 
 BOOK in. table ? If the appearances are so easily credited, it is the 
 .f.HAp. "" fault of that neighbour who has betrayed his ambition by 
 several indications. If Charles the Second, King of Spain, 
 instead of settling the succession on the Duke of Anjou, had 
 appointed for his heir Louis XIV. himself to have tamely 
 suffered the union of the monarchy of Spain with that of 
 France, would, according to all the rules of human foresight, 
 have been nothing less than delivering up all Europe to ser- 
 vitude, or at least reducing it to the most critical and preca- 
 rious situation. But then, if two independent nations think 
 fit to unite, so as afterwards to form one joint empire, have 
 they not a right to do it ? And who is authorized to oppose 
 [ 810 ] them ? I answer, they have a right to form such a union, pro- 
 vided the views by which they are actuated be not prejudicial 
 to other states. Now, if each of the two nations in question 
 be, separately and without assistance, able to govern and sup- 
 port herself, and to defend herself from insult and oppression, 
 it may be reasonably presumed that the object of their coali- 
 tion is to domineer over their neighbours. And, on occasions 
 where it is impossible or too dangerous to wait for an abso- 
 lute certainty, we may justly act on a reasonable presumption. 
 If a stranger levels a musket at me in the middle of a forest, 
 I am not yet certain that he intends to kill me : but shall I, 
 in order to be convinced of his design, allow him time to fire ? 
 What reasonable casuist will deny me the right to anticipate 
 him ? But presumption becomes nearly equivalent to certainty, 
 if the prince who is on the point of rising to an enormous 
 power has already given proofs of imperious pride and insa- 
 tiable ambition. In the preceding supposition, who could 
 have advised the powers of Europe to suffer such a formidable 
 accession to the power of Louis the Fourteenth ? Too certain 
 of the use he would have made of it, they would have joined 
 in opposing it: and in this their safety warranted them. To 
 say that they should have allowed him time to establish his 
 dominion over Spain, and consolidate the union of the two 
 monarchies, and that, for fear of doing him an injury, they 
 should have quietly waited till he crushed them all, would 
 not this be, in fact, depriving mankind of the right to regulate 
 their conduct by the dictates of prudence, and to act on the 
 ground of probability ? Would it not be robbing them of the 
 liberty to provide for their own safety, as long as they have 
 not mathematical demonstration of its being in danger ? It 
 would have been in vain to have preached such a doctrine. 
 The principal sovereigns of Europe, habituated, by the ad- 
 ministration of Louvois, to dread the views and power of Louis 
 XIV., carried their mistrust so far, that they would not even 
 suffer a prince of the house of France to sit on the throne of 
 Spain, though invited to it by the nation, whose approbation 
 had sanctioned the will of her former sovereign. He ascend- 
 ed it, however, notwithstanding the efforts of those who so 
 412
 
 OF THE JUST CAUSES OF WAR, ETC. 310 
 
 strongly dreaded his elevation ; and it has since appeared that BOOK m. 
 their policy was too suspicious. CHAP - m - 
 
 It is still easier to prove, that, should that formidable pow- 45. An- 
 er betray an unjust and ambitious disposition, by doing the other ca f e 
 least injustice to another, all nations may avail themselves of e evi " 
 the occasion, and, by joining the injured party, thus form a 
 coalition of strength, in order to humble that ambitious poten- 
 tate, and disable him from so easily oppressing his neighbours, 
 or keeping them in continual awe and fear. For an injury 
 gives us a right to provide for our future safety, by depriving 
 the unjust aggressor of the means of injuring us ; and it 
 is lawful and even praiseworthy to assist those who are op- 
 pressed, or unjustly attacked. 
 
 Enough has been said on this subject, to set the minds of 
 politicians at ease, and relieve them from all apprehension 
 that a strict and punctilious observance of justice in this par- [ 311 ] 
 ticular would pave the way to slavery. It is perhaps wholly 
 unprecedented that a state should receive any remarkable ac- 
 cession of power, without giving other states just causes of 
 complaint. Let the other nations be watchful and alert in 
 repressing that growing power, and they will have nothing 
 to fear. The emperor Charles V. laid hold on the pretext of 
 religion, in order to oppress the princes of the empire, and 
 subject them to his absolute authority. If, by following up 
 his victory over the elector of Saxony, he had accomplished 
 that vast design, the liberties of all Europe would have been 
 endangered. It was therefore with good reason that France 
 assisted the protestants of Germany : the care of her own 
 safety authorized and urged her to the measure. When the 
 same prince seized on the duchy of Milan, the sovereigns of 
 Europe ought to have assisted France in contending with 
 him for the possession of it, and to have taken advantage of 
 the circumstance, in order to reduce his power within just 
 bounds. Had they prudently availed themselves of the just 
 causes which he soon gave them to form a league against him, 
 they would have saved themselves the subsequent anxieties 
 for their tottering liberty. 
 
 But, suppose that powerful state, by the justice and circum- ? 46. Other 
 spection of her conduct, affords us no room to take exception allowable 
 to her proceedings, are we to view her progress with an eye e fe^ e f 
 of indifference? Are we to remain quiet spectators of the^/ingta 
 rapid increase of her power, and imprudently expose ourselves formidable 
 to such designs as it may inspire her with : No, beyond all power, 
 doubt. In a matter of so high importance, imprudent supine- 
 ness would be unpardonable. The example of the Romans 
 is a good lesson for all sovereigns. Had the potentates of 
 those times concerted together to keep a watchful eye on 
 the enterprises of Rome, and to check her incroachments, 
 they would not have successively fallen into servitude. But 
 force of arms is not the only expedient by which we may 
 
 2 K 2 413 '
 
 OF THE JUST CAUSES OF WAR, ETC. 
 
 311 
 
 BOOK in. guard against a formidable power. There are other means, 
 _CHAP. in. Q f a g en tl er nature, and which are at all times lawful. The 
 most effectual is a confederacy of the less powerful sovereigns, 
 who, by this coalition of strength, become able to hold the 
 balance against that potentate whose power excites their 
 alarms. Let them be firm and faithful in their alliance ; and 
 their union will prove the safety of each. 
 
 They may also mutually favour each other, to the exclusion 
 of him whom they fear ; and by reciprocally allowing various 
 advantages to the subjects of the allies, especially in trade, 
 and refusing them to those of that dangerous potentate, they 
 will augment their own strength, and diminish his, without 
 affording him any just cause of complaint, since every one is 
 at liberty to grant favours and indulgences at his own pleasure. 
 47. Poiiti- Europe forms a political system, an integral body, closely 
 cai equiiibri- connected by the relations and different interests of the na- 
 tions inhabiting this part of the world. It is not, as formerly, 
 [ 312 ] a confused heap of detached pieces, each of which thought 
 herself very little concerned in the fate of the others, and 
 seldom regarded things which did not immediately concern 
 her. The continual attention of sovereigns to every occur- 
 rence, the constant residence of ministers, and the perpetual 
 negotiations, make of modern Europe a kind of republic, of 
 which the members each independent, but all linked together 
 by the ties of common interest unite for the maintenance 
 of order and liberty. Hence arose that famous scheme of 
 the political balance, or the equilibrium of power ; by which 
 is understood such a disposition of things, as that no one po- 
 tentate be able absolutely to predominate, and prescribe laws 
 to the others. 
 
 48. Ways The surest means of preserving that equilibrium would be, 
 of main- ^hat no power should be much superior to the others, that all, 
 taming it Qr a ^. ] eas ^g g rea ter part, should be nearly equal in force. 
 Such a project has been attributed to Henry the Fourth:* 
 but it would have been impossible to carry it into execution 
 without injustice and violence. Besides, suppose such equality 
 once established, how could it always be maintained by lawful 
 means ? Commerce, industry, military pre-eminence, would 
 soon put an end to it. The right of inheritance, vesting even 
 in women and their descendants, a rule, which it was so 
 absurd to establish in the case of sovereignties, but which 
 nevertheless is established, would completely overturn the 
 whole system. 
 
 It is a more simple, an easier, and a more equitable plan, 
 to have recourse to the method just mentioned, of forming 
 confederacies in order to oppose the more powerful potentate, 
 and prevent him from giving law to his neighbours. Such is 
 the mode at present pursued by the sovereigns of Europe. 
 
 * Of France. 
 414 

 
 OF THE JUST CAUSES OF WAE, ETC. 312 
 
 They consider the two principal powers, which, on that very BOOK m. 
 account, are naturally rivals, as destined to be checks on each CHAP - m - 
 other ; and they unite with the weaker, like so many weights 
 thrown into the lighter scale, in order to keep it in equilibrium 
 with the other. The house of Austria has long been the 
 preponderating power : at present France is so in her turn. 
 England, whose opulence and formidable fleets have a power- 
 ful influence, without alarming any state on the score of its 
 liberty, because that nation seems cured of the rage for con- 
 quest, England, I say, has the glory of holding the political 
 balance. She is attentive to preserve it in equilibrium : a 
 system of policy, which is in itself highly just and wise, and 
 will ever entitle her to praise, as long as she continues to 
 pursue it only by means of alliances, confederacies, and other 
 methods equally lawful. 
 
 Confederacies would be a sure mode of preserving the equi- g 49. How 
 librium, and thus maintaining the liberty of nations, did all he who de - 
 princes thoroughly understand their true interests, and make ^JJ,^ 
 the welfare of the state serve as the rule in all their proceed- may t, e re _ 
 ings. Great potentates, however, are but too successful in strained, or 
 gaining over partisans and allies, who blindly adopt all their even weak - 
 views. Dazzled by the glare of a present advantage, seduced ened ' 
 by their avarice, deceived by faithless ministers how many [ 313 ] 
 princes become the tools of a power which will one day 
 swallow up either themselves or their successors ! The safest 
 plan, therefore, is to seize the first favourable opportunity, 
 when we can, consistently with justice, weaken the potentate 
 who destroys the equilibrium ( 45) or to employ every 
 honourable means to prevent his acquiring too formidable a 
 degree of power. For that purpose, all the other nations 
 should be particularly attentive not to suffer him to aggrandize 
 himself by arms : and this they may at all times do with jus- 
 tice. For, if this prince makes an unjust war, every one has 
 a right to succour the oppressed party. If he makes a just 
 Avar, the neutral nations may interfere as mediators for an ac- 
 commodation they may induce the weaker state to propose 
 reasonable terms and offer a fair satisfaction, and may save 
 her from falling under the yoke of a conqueror. On the offer 
 of equitable conditions to the prince who wages even the most 
 justifiable war, he has all that he can demand. The justice of 
 his cause, as we shall soon sefc, never gives him a right to subju- 
 gate his enemy, unless when that extremity becomes necessary 
 to his own safety, or when he has no other mode of obtaining 
 indemnification for the injury he has received. Now, that is 
 not the case here, as the interposing nations can by other 
 means procure him a just indemnification, and an assurance 
 of safety. 
 
 In fine, there cannot exist a doubt, that, if that formidable 
 potentate certainly entertain designs of oppression and con 
 quest, if he betray his views by his preparations and other 
 
 415
 
 313 OF THE JUST CAUSES OF WAR, ETC. 
 
 BOOK in. proceedings, the other states have a right to anticipate him ; 
 CHAP " '" and if the fate of war declares in their favour, they are justi- 
 
 fiable in taking advantage of this happy opportunity to weak- 
 en and reduce a power too contrary to the equilibrium, and 
 dangerous to the common liberty. 
 
 This right of nations is still more evident against a sove- 
 reign, who, from an habitual propensity to take up arms 
 without reasons, or even so much as plausible pretexts, is con- 
 tinually disturbing the public tranquillity. 
 
 g 50. Be- This leads us to a particular question, nearly allied to the 
 haviourai- preceding. When a neighbour, in the midst of a profound 
 wards 1 ! t " peace, erects fortresses on our frontier, equips a fleet, aug- 
 neighbour ments his troops, assembles a powerful army, fills his maga- 
 preparing zincs, in a word when he makes preparations for war, are 
 for war. we allowed to attack him, with a view to prevent the danger 
 with which we think ourselves threatened ? The answer 
 greatly depends on the manners and character of that neigh- 
 bour. We must inquire into the reasons of those preparations, 
 and bring him to an explanation : such is the mode of pro- 
 ceeding in Europe : and if his sincerity be justly suspected, 
 securities may be required of him. His refusal in this case, 
 would furnish ample indication of sinister designs, and a suf- 
 ficient reason to justify us in anticipating them. But if that 
 [ 314 ] sovereign has never betrayed any symptoms of baseness and 
 perfidy, and especially if at that time there is no dispute sub- 
 sisting between him and us, why should we not quietly rest 
 on his word, only taking such precautions as prudence ren- 
 ders indispensable ? We ought not, without sufficient cause, 
 to presume him capable of exposing himself to infamy by add- 
 ing perfidy to violence. As long as he has not rendered his 
 sincerity questionable, we have no right to require any other 
 security from him. 
 
 It is true, however, that, if a sovereign continues to keep 
 up a powerful army in profound peace, his neighbours must 
 not suffer their vigilance to be entirely lulled to sleep by his 
 bare word; and prudence requires that they should keep 
 themselves on their guard. However certain they may be of 
 the good faith of that prince, unforeseen differences may in- 
 tervene ; and shall they leave him the advantage of being pro- 
 vided, at that juncture, with a numerous and well disciplined 
 army, while they themselves will have only new levies to op- 
 pose it ? Unquestionably no. This would be leaving them- 
 selves almost wholly at his discretion. They are, therefore, 
 under the necessity of following his example, and keeping, as 
 he does, a numerous army on foot: and what a burden is this 
 to a state ! Formerly, and without going any further back 
 than the last century, it was pretty generally made an article 
 in every treaty of peace, that the belligerent powers should 
 disarm on both sides that they should disband their troops. 
 If, in a time of profound peace, a prince was disposed to keep 
 
 416
 
 OF THE DECLARATION OF WAR, ETC. 314 
 
 up any considerable number of forces, his neighbours took their BOOK m. 
 measures accordingly, formed leagues against him, and obliged CHAP ' m ' 
 him to disarm. Why has not that salutary custom been pre- 
 served? The constant maintenance of numerous armies 
 deprives the soil of its cultivators, checks the progress of 
 population, and can only serve to destroy the liberties of the 
 nation by whom they are maintained. Happy England ! 
 whose situation exempts it from any considerable charge in 
 supporting the instruments of despotism. Happy Switzer- 
 land ! if, continuing carefully to exercise her militia, she 
 keeps herself in a condition to repel any foreign enemies, 
 without feeding a host of idle soldiers, who might one day 
 crush the liberties of the people, and even bid defiance to 
 the lawful authority of the sovereign. Of this the Roman 
 legions furnish a signal instance. This happy method of a 
 free republic, the custom of training up all her citizens to 
 the art of war, renders the state respectable abroad, and 
 saves it from a very pernicious defect at home. It would 
 have been everywhere imitated, had the public good been 
 everywhere the only object in view. 
 
 Sufficient has now been said on the general principles for 
 estimating the justice of a war. Those who are thoroughly 
 acquainted with the principles, and have just ideas of the 
 various rights of nations, will easily apply the rules to par- 
 ticular cases. 
 
 CHAP. IV. [ 315 ] 
 
 OF THE DECLARATION OF WAR, AND OF WAR IN DUE CHAP, iv. 
 FORM. (142) 
 
 THE right of making war belongs to nations only as a 51. Da- 
 remedy against injustice: it is the offspring of unhappy claration of 
 necessity. This remedy is so dreadful in its effects, so war> 
 destructive to mankind, so grievous even to the party who 
 has recourse to it, that unquestionably the law of nature 
 allows of it only in the last extremity, that is to say, when 
 every other expedient proves ineffectual for the maintenance 
 of justice. It is demonstrated in the foregoing chapter, that, 
 in order to be justifiable in taking up arms, it is necessary 
 1. That we have a just cause of complaint. 2. That a rea- 
 sonable satisfaction have been denied us. 3. The ruler of 
 the nation, as we have observed, ought maturely to consider 
 
 (142) See in general, Grotius, B. iii. c. iv. a. 8; and 1 Chitty's Com. Law, 378. 
 C. 
 
 53
 
 315 OF THE DECLARATION OF WAR, 
 
 BOOK m. whether it be for the advantage of the state to prosecute his 
 CHAP - Iy- right by force of arms. But all this is not sufficient. As it 
 is possible that the present fear of our arms may make an 
 
 thereof* 7 i m P ress i n on tne m ^ n d f our adversary, and induce him to 
 do us justice, we owe this further regard to humanity, and 
 especially to the lives and peace of the subjects, to declare 
 to that unjust nation, or its chief, that we are at length going 
 to have recourse to the last remedy, and make use of open 
 force, for the purpose of bringing him to reason. This is 
 called declaring war. All this is included in the Roman 
 manner of proceeding, regulated in their fecial law. They 
 first sent the chief of the feciales, or heralds, called pater pa- 
 tratus, to demand satisfaction of the nation who had offended 
 them ; and if, within the space of thirty-three days, that na- 
 tion did not return a satisfactory answer, the herald called 
 the gods to be witnesses of the injustice, and came away, say- 
 ing that the Romans would consider what measures they 
 should adopt. The king, and in after times the consul, here- 
 upon asked the senate's opinion : and when war was resolved 
 on, the herald was sent back to the frontier, where he de- 
 clared it.* It is surprising to find among the Romans such jus- 
 tice, such moderation and prudence, at a time too when, ap- 
 parently, nothing but courage and ferocity was to be expected 
 from them. By such scrupulous delicacy in the conduct of 
 her wars, Rome laid a most solid foundation for her subsequent 
 greatness. 
 
 52. What A declaration of war being necessary, as a further effort to 
 
 it is to con- terminate the difference without the effusion of blood, by 
 
 tam ' making use of the principle of fear, in order to bring the 
 
 enemy to more equitable sentiments, it ought, at the same 
 
 time that it announces our settled resolution of making war, 
 
 T 316 ] to set forth the reasons which have induced us to take up arms. 
 
 This is, at present, the constant practice among the powers 
 
 of Europe. 
 
 53. it is After a fruitless application for justice, a nation may pro- 
 simple or ceed to a declaration of war, which is then pure and simple. 
 conditional. g u ^ ^ Q i nc j u( j e the whole business in a single act, instead of 
 two separate ones, the demand of justice (called by the Ro- 
 mans rerum repetitio) may, if we think proper, be accompa- 
 nied by a conditional declaration of war, notifying that we 
 will commence hostilities unless we obtain immediate satisfac- 
 tion on such or such subject. In this case there is no neces- 
 sity for adding a pure and simple declaration of war, the 
 conditional one sufficing, if the enemy delays giving satis- 
 faction. 
 
 I 54. The If the enemy, on either declaration of war, offers equitable 
 right to conditions of peace, we are bound to refrain from hostilities ; 
 make war f or Ag soon ag justice is done to us, that immediately super- 
 
 * Livy, lib. i. cap. 31. 
 413
 
 AND OF WAR IN DUE FORM. 316 
 
 sedes all right to employ force, which we are not allowed to BOOK m. 
 use unless for the necessary maintenance of our rights. To CHAP ' IY " 
 these offers, however, are to be added securities; for we are the . off of 
 under no obligation to suffer ourselves to be amused by empty Conditions 
 proposals. The word of a sovereign is a sufficient security, as 
 long as he has not disgraced his credit by any act of perfidy : 
 and we should be contented with it. As to the conditions 
 themselves, besides the principal subject, we have a right to 
 demand a reimbursement of the expenses incurred in our pre- 
 parations for war. 
 
 It is necessary that the declaration of war be known to the ? 55. For- 
 state against whom it is made. This is all which the natural mallties of a 
 law of nations requires. Nevertheless, if custom has intro- J c ai 
 duced certain formalities in the business, those nations who, 
 by adopting the custom, have given their tacit consent to such 
 formalities, are under an obligation of observing them, as long 
 as they have not set them aside by a public renunciation 
 (Prelim. 26). Formerly, the powers of Europe used to send 
 heralds, or ambassadors to declare war ; at present, they con- 
 tent themselves with publishing the declaration in the capital, 
 in the principal towns, or on the frontiers : manifestoes are 
 issued ; and, through the easy and expeditious channels of 
 communication which the establishment of posts now affords, 
 the intelligence is soon spread on every side. 
 
 Besides the foregoing reasons, it is necessary for a nation 56. Otner 
 to publish the declaration of war for the instruction and direc- reasons for 
 tion of her own subjects, in order to fix the date of the rights * e o j ^ ssl " 
 which belong to them from the moment of this declaration, pu biica- 
 and in relation to certain effects which the voluntary law of tion.(i43) 
 nations attributes to a war in form. Without such a public 
 declaration of war, it would, in a treaty of peace, be too diffi- 
 cult to determine those acts which are to be considered as the 
 effects of war, and those that each nation may set down as in- 
 juries of which she means to demand reparation. In the last 
 treaty of Aix-la-Chapelle, between France and Spain on the 
 one side, and England on the other, it was agreed that all the 
 prizes taken before the declaration of war should be restored. 
 
 He who is attacked and only wages defensive war, needs ? 57. D?- 
 not to make any hostile declaration, the state of warfare be- fensi . vo v - 
 ing sufficiently ascertained by the enemy's declaration, (HrJJStrSbl 
 
 (143) But there seems to be no ab- was declared by Act of Congress, June 
 
 eolute necessity for a formal declaration 18th, 1812. (Laws U. S. 1812, p. 227.) 
 
 of war to render it legal. See obser- But war had existed, in fact, from March 
 
 rations of Sir William Scott, in Nayede, 4th until May 13th, 1846, between 
 
 4 Rob. Rep. 252 ; Chitty's Law Nat. Mexico and the United States, without 
 
 29, 3. But, in England, the king must any formal declaration. The act of 
 
 have assented to a war to render it Congress of 13th May, 1846, declares 
 
 strictly legal. Brooke's Abrid. tit that, "by the act of the Republic of 
 
 "Denizen," pi. 26; The Hoop, 1 Rob. Mexico," war existed between the coun- 
 
 Rep. 196. C. { The late war between tries. (Laws U. States, 1846, p. 14.) { 
 the United States and Great Britain 
 
 419
 
 war. 
 
 317 OF THE DECLARATION OF WAR, 
 
 BOOK in. open hostilities. In modern times, however, the sovereign 
 CHAP. IY. w fr Q j s attacked, seldom omits to declare war in his turn, 
 whether from an idea of dignity, or for the direction of his 
 subjects. 
 
 58. When If the nation on whom we have determined to make war 
 it may be w ifl no t admit any minister or herald to declare it, whatever 
 omitted m ^e custom may otherwise be, we may content ourselves with 
 publishing the declaration of hostilities within our own terri- 
 tories, or on the frontier ; and if the declaration does not 
 come to the knowledge of that nation before hostilities are 
 commenced, she can only blame herself. The Turks imprison 
 and maltreat even the ambassadors of those powers with 
 whom they are determined to come to a rupture : it would be 
 a perilous undertaking for a herald to go and declare war 
 against them in their own country. Their savage disposition, 
 therefore, supersedes the necessity of sending one. 
 ?59. itisnot But no person being exempted from his duty for the sole 
 to be omit- reason that another has been wanting in his, we are not to 
 ted by way om ^ declaring war against a nation, previous to a commence- 
 tfon 6talia men t f hostilities, because that nation has, on a former oc- 
 casion, attacked us without any declaration. That nation, in 
 so doing, has violated the law of nature ( 51) ; and her fault 
 does not authorize us to commit a similar one. 
 
 eo. Time The law of nations does not impose the obligation of declar- 
 of the de- j n g war? w ith a view to give the enemy time to prepare for 
 claration. an un j u g defence. The declaration, therefore, need not be 
 made till the army has reached the frontiers ; it is even law- 
 ful to delay it till we have entered the enemy's territories, 
 and there possessed ourselves of an advantageous post : it must, 
 however, necessarily precede the commission of any act of 
 hostility. For thus we provide for our own safety, and 
 equally attain the object of a declaration of war, which is, to 
 give an unjust adversary the opportunity of seriously consi- 
 dering his past conduct, and avoiding the horrors of war, by 
 doing justice. Such was the conduct of that generous prince, 
 Henry the Fourth, towards Charles Emanuel duke of Savoy ; 
 who had wearied his patience by vain and fraudulent nego- 
 tiations.* 
 
 61. Duty If he, who enters a country with an army kept under strict 
 of the inha- discipline, declares to the inhabitants that he does not come 
 as an enemy, that he will commit no violence, and will ac- 
 quaint the sovereign with the cause of his coming, the in- 
 tering a habitants are not to attack him ; and should they dare to at- 
 country be- tempt it, he has a right to chastise them. But they are not 
 to admit him into any strong-holds, nor can he demand ad- 
 mission. It is not the business of subjects to commence hos- 
 tilities without orders from their sovereign : but if they are 
 brave and loyal, they will, in the mean time, seize on all the 
 
 * See Sally's Memoirs. 
 420
 
 AND OF WAR IN DUE FORM. 318 
 
 advantageous posts, and defend themselves against any at- BOOK m. 
 tempt made to dislodge them. CHAP '. 
 
 After a declaration of war on the part of the sovereign who g 62. Com- 
 has thus invaded the country, if equitable conditions are not mencement 
 offered him without delay, he may commence his operations ; of hostmties - 
 for, I repeat it, he is under no obligation to suffer himself to 
 be amused. But, at the same time, we are never to lose 
 sight of the principles before laid down ( 26 and 51) concern- 
 ing the only legitimate causes of war. To march an army 
 into a neighbouring country by which we are not threatened, 
 and without having endeavoured to obtain, by reason and jus- 
 tice, an equitable reparation for the wrongs of which we com- 
 plain, would be introducing a mode pregnant with evils to 
 mankind, and sapping the foundations of the safety and tran- 
 quillity of states. If this mode of proceeding be not exploded 
 and proscribed by the public indignation and the concurrence 
 of every civilized people, it will become necessary to continue 
 always in a military posture, and to keep ourselves constantly 
 on our guard, no less in times of profound peace, than during 
 the existence of declared and open war. 
 
 The sovereign declaring war can neither detain the persons \ 63. Con- 
 nor the property of those subjects of the enemy who are duct to be 
 within his dominions at the time of the declaration. They ^7^*' 
 came into his country under the public faith. By permitting su bj ec ts of 
 them to enter and reside in his territories, he tacitly promised an enemy, 
 them full liberty and security for their return. He is there- who are in 
 fore bound to allow them a reasonable time for withdrawing tl ^ OI ^ y 
 with their effects ; and, if they stay beyond the term prescribed, * f th e e ^ 
 he has a right to treat them as enemies, as unarmed enemies, ciaration of 
 however. But, if they are detained by an insurmountable war - ( 144 ) 
 impediment, as by sickness, he must necessarily, and for the 
 same reasons, grant them a sufficient extension of the time. 
 At present, so far from being wanting in this duty, sovereigns 
 carry their attention to humanity still farther, so that foreign- 
 ers, who are subjects of the state against which war is de- 
 clared, are very frequently allowed full time for the settlement 
 of their affairs. This is observed in a particular manner with 
 regard to merchants ; and the case is moreover carefully pro- 
 vided for in commercial treaties. The king of England has 
 done more than this. In his last declaration of war against 
 France, he ordained that all French subjects who were in his 
 dominions should be at liberty to remain, and be perfectly 
 secure in their persons and effects, "provided they demeaned 
 themselves properly." 
 
 We have said ( 56), that a sovereign is to make the de- ? 64. Pub- 
 claration of war public within his dominions, for the informa- licat ^ a n r a f nd 
 tion and direction of his subjects. He is also to make known 
 his declaration of war to the neutral powers, in order to ac- 
 
 (144) See in general 1 Chitty's Com. L. 414. C. 
 
 2L 421
 
 318 OF THE DECLARATION OF WAR, 
 
 BOOK m . quaint them with the justificatory reasons which authorize 
 C1IAI> ' IV ' it, the cause which obliges him to take up arms, and to 
 notify to them that such or such a nation is his enemy, that 
 they may conduct themselves accordingly. We shall even see 
 [ 319 ] that this is necessary in order to obviate all difficulty, when 
 we come to treat of the right to seize certain things which 
 neutral persons are carrying -,to the enemy, and of what is 
 termed contraband, in time of war. This publication of the 
 war may be called declaration, and that which is notified di- 
 rectly to the enemy, denunciation ; and, indeed, the Latin 
 term is denunciatio belli. 
 
 War is at present published and declared by manifestoes. 
 These pieces never fail to contain the justificatory reasons, 
 good or bad, on which the party grounds his right to take up 
 arms. The least scrupulous sovereign would wish to be thought 
 just, equitable, and a lover of peace : he is sensible that a 
 contrary reputation might be detrimental to him. The mani- 
 festo implying a declaration of war, or the declaration itself, 
 printed, published, and circulated throughout the whole state, 
 contains also the sovereign's general orders to his subjects, re- 
 lative to their conduct in the war.* 
 
 g 65. Deco- In so civilized an age, it may be unnecessary to observe, 
 mm and that, in those pieces which are published on the subject of war, 
 tTbiTob- 011 ^ * 8 P r P er t abstain from every opprobrious expression in- 
 served in dicative of hatred, animosity, and rage, and only calculated to 
 the mani- excite similar sentiments in the bosom of the enemy. A prince 
 festoes. ought to preserve the most dignified decorum, both in his 
 words and in his writings. He ought to respect himself in the 
 person of his equals : and, though it is his misfortune to be at 
 variance with a nation, shall he inflame the quarrel by offen- 
 sive expressions, and thus deprive himself even of the hopes 
 of a sincere reconciliation ? Homer's heroes call each other 
 " dog" and " drunkard:" but this was perfectly in character, 
 since, in their enmity, they knew no bounds. Frederic Bar- 
 barossa, and other emperors, and the popes their enemies, 
 treated each other with as little delicacy. Let us congratu- 
 late our age on the superior gentleness of its manners, and 
 not give the name of unmeaning politeness to those attentions 
 which are productive of real and substantial effects. 
 66. What Those formalities, of which the necessity is deducible from 
 is a lawful the principles and the very nature of war, are the charac- 
 teristics of a lawful war in due form (justum bellum.) Grotius 
 says,f that, according to the law of nations, two things are 
 requisite to constitute a solemn or formal war first, that it be 
 
 * It is remarked as a very singular themselves properly," and, moreover, 
 
 circumstance, that Charles the Se- his protection and favour to such of them 
 
 cond, king of Great Britain, in his de- as might choose to 'emigrate to his do- 
 
 claration of war against France, dated minions. 
 
 February 9, 1668, promised security to f De Jure Belli et Pacis, lib. i. cap. 
 
 French subjects who should " demean iii. Z 4. 
 422
 
 AND OF WAR IN DUE FORM. 319 
 
 on both sides, made by tbe sovereign authority, secondly, BOOK m. 
 that it be accompanied by certain formalities. These formali- CHAP - ** , 
 ties consist in the demand of a just satisfaction (rerum repe- 
 titio], and in the declaration of war, at least on the part of 
 him who attacks ; for defensive war requires no declaration 
 ( 57), nor even, on urgent occasions, an express order from 
 the sovereign. In effect, these two conditions are necessarily [ 320 ] 
 required in every war which shall, according to the law of 
 nations, be a legitimate one, that is to say, such a war as 
 nations have a right to wage. The right of making war be- 
 longs only to the sovereign ( 4) ; and it is only after satis- 
 faction has been refused to him ( 37), and even after he has 
 made a declaration of war ( 51), that he has a right to take 
 up arms. (145) 
 
 A war in due form is also called a regular war, because cer- What a re- 
 tain rules, either prescribed by the law of nature, or adopted S" 18 * war > 
 by custom, are observed in it. noticed in 
 
 Legitimate and formal warfare must be carefully distin- courts O f 
 guished from those illegitimate and informal wars, or rather justice, Ac, 
 predatory expeditions, undertaken either without lawful au- ( 146 -) 
 thority or without apparent cause, as likewise without the J^Jj^" ** 
 usual formalities, and solely with a view to plunder. Grotius gu i s hed 
 relates several instances of the latter.* Such were the enter- from in- 
 prises of the grandes compagnies which had assembled in formal and 
 France during the wars with the English, armies of banditti, w ^ awful 
 who ranged about Europe, purely for spoil and plunder : such 
 were the cruises of the buccaneers, without commission, and 
 in time of peace ; and such in general are the depredations of 
 pirates. To the same class belong almost all the expeditions 
 of the Barbary corsairs : though authorized by a sovereign, 
 
 (145) Ante, the notes to the same sec- 62 ; Blackburne v. Thompson, 15 East, 
 tions. C. 90, S. P.) observed, that, in order to as- 
 
 (146) It has been laid down, that certain whether or not a war or state 
 whenever the king's courts are open in of amity or neutrality subsists, it always 
 a given country, it is time of peace in belongs to the Government of the coun- 
 judgment of law ; but, when by hostile try to determine in what relation any 
 measures such courts are shut up or in- other country stands towards it ; and 
 terrupted, then it is said to be time of that is a point upon which courts of jus- 
 war. Earl Lancaster's case, Bale's Pleas tice cannot decide ; (f. e. without evi- 
 Crown, Part L c. 26, p. 344 ; Co. Litt. dence aliunde as to the declarations or 
 249, b. cited, and other points as to what resolutions of Government;) and the 
 is war ; Elphinstone v. Bedreechund, most potent evidence upon such a sub- 
 Knapp's Rep. 316. But at present, ject is the declaration of the state. And 
 when in courts of justice, whether of if the state recognises any place as be- 
 Common Law, Equity, Admiralty, or ing or as not being in the relation of 
 Prize Court, it becomes necessary to hostility to this country, that is obliga- 
 ascertain what is, or not, evidence of a tory on courts of justice. Per Lord El- 
 war, or a peace, or neutrality, the same lenborough, 3 Camp. 66 ; and see other 
 is now usually determined by distinct instances and authorities, 1 Chitty's 
 acts of the state. Upon this question, Commercial Law, 393-4. C. { See, also, 
 the following cases are material : Sir The U. States v. Palmer, 3 Wheat Rep. 
 
 Wm. Grant (in case of Pelham Burke, 634, 635.} 
 
 1 Edward's Rep. Appendix D ; 3 Camp. * Lib. iii. cap. iv. 
 
 423
 
 320 OF THE DECLARATION OF WAR, ETC. 
 
 BOOK m. they are undertaken without any apparent cause, and from no 
 CHAP. IY. Qtjjgj. mo tive than the lust of plunder. These two species of 
 war, I say, the lawful and the illegitimate, are to be care- 
 fully distinguished, as the effects and the rights arising from 
 each are very different. 
 
 68. In order fully to conceive the grounds of this distinction, 
 
 Grounds of ft [ s ne cessary to recollect the nature and object of lawful 
 lc ~ war. It is only as the last remedy against obstinate injustice 
 that the law of nature allows of war. Hence arise the rights 
 which it gives, as we shall explain in the sequel : hence, like- 
 wise, the rules to be observed in it. Since it is equally possi- 
 ble that either of the parties may have right on his side, 
 and since, in consequence of the independence of nations, that 
 point is not to be decided by others ( 40), the condition of 
 the two enemies is the same, while the war lasts. Thus, when 
 a nation, or a sovereign, has declared war against another 
 sovereign on account of a difference arisen between them, their 
 war is what among nations is called a lawful and formal war ; 
 and its effects are, by the voluntary law of nations, the same 
 on both sides, independently of the justice of the cause, as we 
 shall more fully show in the sequel.* Nothing of this kind is 
 the case in an informal and illegitimate war, which is more 
 properly called depredation. Undertaken without any right, 
 without even an apparent cause, it can be productive of no 
 lawful effect, nor give any right to the author of it. A nation 
 attacked by such sort of enemies is not under any obligation 
 to observe towards them the rules prescribed in formal war- 
 [ 321 ] fare. She may treat them as robbers. (1) The inhabitants of 
 Geneva, after defeating the famous attempt to take their city 
 by escaladef, caused all the prisoners whom they took from 
 the Savoyards on that occasion to be hanged up as robbers, 
 who had come to attack them without cause and without a de- 
 claration of war. Nor were the Genevese censured for this 
 proceeding, which would have been detested in a formal war. 
 
 * See chap. xii. of this book. are hastes humani generis. The 3fari- 
 
 {(1) Pirates may be lawfully.^aptured anno Flora, 11 Wheat. Rep. l.{ 
 
 by the public or private armed ships of -J- In the year 1602. 
 
 any nation, in peace or war; for they 
 424
 
 OF THE ENEMY, ETC. 
 
 321 
 
 CHAP. V. 
 
 OF THE ENEMY, AND OF THINGS BELONGING TO THE ENEMY. 
 
 THE enemy is he with whom a nation is at open war. The 69. wiio 
 Latins had a particular term (Hostis) to denote a public enemy, is an en i f- 
 and distinguished him from a private enemy (Inimicus). Our my ' ( 
 language affords but one word for these two classes of per- 
 sons, who ought, nevertheless, to be carefully distinguished. 
 
 (147) As to the definition of an alien East, 489 ; Willan v. Patteson, 7 Taunt 
 
 enemy, and of what is less than a gene- 439 ; Grotius, B. 3, c. 4, s. 8 ; Binker- 
 
 ral enemy, and merely an hostile cha- shock, B. 1, c. 3 ; Chitty's L. Nat 1 to 
 
 racier, or hostile residence, or hostile 27. The exceptions to that rule are 
 
 trade, and of the modern decisions on the sometimes by express treaty ; (see 2 
 
 diversities ; see Boedes Lust, 5 Rob. Rep. Ward's Law of Nat. 358 ;) and in Great 
 
 233 ; 1 Chitty's Commercial Law, 394 Britain have been permitted by tempo- 
 
 to 412, Id. Index, tit Hostile Character, rary acts, or by orders in council, author- 
 
 and Chitty's L. Nat 30 to 64. izing the privy council to grant licenses. 
 
 In some cases, the generous and be- (See Phillimore on Licenses, 5.) The 
 
 neficial conduct of an enemy will obli- case of prisoners at war contracting for 
 
 terate his hostile character, and preclude necessaries, constitutes an exception, 
 
 his property from becoming subject to Antoine \. Morshead, 6 Taunt 237 
 
 seizure, as was beautifully illustrated 447 ; 1 Marsh. Rep. 558 ; Danby v. Mors- 
 
 by Sir W. Scott's decision in Jonge J. head, 6 Taunt 332 ; Vattel, post, g 264, 
 
 Baumann, where an English frigate, p. 414. 
 
 with her officers and crew, having been Questions sometimes arise, whether 
 
 saved from shipwreck by a foreign a commercial transaction between par- 
 
 { neutral } vessel and crew, the former ties in different countries, afterwards 
 
 ungratefully carried the latter into port at war with each other, as for instance, 
 
 as prize; {asserting she had French Great Britain and America, pending 
 
 property on board ; } but a restoration war, or on the eve of war, between 
 
 was decreed, on the ground that such a these countries, was pactum illicitum, 
 
 service had blotted out and obliterated If it be pending war, or in contempla- 
 
 the character of an enemy, { if it had tion of it, and against its spirit, and not 
 
 ever existed, which was not the fact. } expressly licensed by the Government, 
 
 1 Rob. Rep. 245 ; and see gg 178, post, then it is illegal. See the rule in the 
 
 pp. 374-5. case of McGavon v. Stewart, in the 
 
 Of the illegality of commerce between House of Lords, (14 July, 1830,) 4 Wils. 
 subjects of belligerent states. Vattel is & Shaw, 193-4. An alien carrying on 
 very succinct upon this, in modern trade in an enemy's country, though 
 times, the most important consequence resident there also in the character of 
 of war. In general it is illegal for the consul of a neutral state, has been con- 
 private subjects of belligerents to have sidered an alien enemy, and as such 
 any commercial transactions or deal- disabled to sue, and liable to confisca- 
 ings between each other, in expecta- tion. Albrebtcht v. Sussmann, 2 Ves. it 
 tion of or pending the war; for other- Beames, 323. 
 
 wise assistance might be rendered to But these rules prohibiting com- 
 the enemy, enabling them to protract merce between the subjects of bellige- 
 the war, and, under colour of com- rent states, do not affect neutrals ; (ex- 
 merce, secret communications might cepting, indeed, the liability to visitation 
 be made injurious to the states of each and search;) and, therefore, actions 
 country ; and therefore there is no such may be sustained in England by a neu- 
 thing as a war for arms, and a peace tral on a promissory note given to him 
 for commerce. The rule and the prin- by a British subject in an enemy's 
 ciple upon which it is founded, are fully country, for goods sold by the neutral 
 commented upon in the case of The to the latter there. Cowp. 363 ; Hour- 
 Hoop, 1 Rob. Rep. 196; Potts v. Bell, 8 ret v. Morris, 3 Camp. 303. And it has 
 Term Rep. 548; Mennett v. Bonham, 15 even been held, that an Englishman 
 54 2 L 2 435
 
 321 OF THE ENEMY, AND OF THINGS 
 
 BOOK in. A private enemy is one who seeks to hurt us, and takes plea- 
 
 _CHAP. Y. gure j n ^ e ey -j t k a t k e fals us A public enemy forms claims 
 
 against us, or rejects ours, and maintains his real or pretended 
 
 rights by force of arms. The former is never innocent ; he 
 
 fosters rancour and hatred in his heart. It is possible that 
 
 the public enemy may be free from such odious sentiments, 
 
 that he does not wish us ill, 1 and only seeks to maintain his 
 
 rights. This observation is necessary in order to regulate the 
 
 dispositions of our heart towards a public enemy. 
 
 70. AH When the sovereign or ruler of the state declares war 
 
 the subjects against another sovereign, it is understood that the whole na- 
 
 stote^aT ^ on declares war against another nation ; for the sovereign 
 
 war are ene- represents the nation, and acts in the name of the whole so- 
 
 mies, ciety (Book I. 40, 41 ;) and it is only in a body, and in her 
 
 national character, that one nation has to do with another. 
 
 Hence, these two nations are enemies, and all the subjects of 
 
 the one are enemies to all the subjects of the other. In this 
 
 particular, custom and principle are in accord. 
 
 \ 71. and Enemies continue such wherever they happen to be. The 
 continue to place of abode is of no consequence here. It is the political 
 be enemies ^ies wn i cn determine the character. Whilst a man continues 
 p aces ' a citizen of his own country, he is the enemy of all those with 
 whom his nation is at war. But we must not hence conclude 
 that these enemies may treat each other as such, wherever 
 they happen to meet. Every one being master in his respect- 
 ive country, a neutral prince will not allow them to use any 
 violence in his territories. 
 
 5 72. Whe- Since women and children are subjects of the state, and 
 ther women members of the nation, they are to be ranked in the class of 
 and children enemies. But it does not thence follow that we are justifiable 
 counted 6 *" * n treating them like men who bear arms, or are capable of 
 enemies. bearing them. It will appear in the sequel, that we have not 
 [ 322 ] the same rights against all classes of enemies. 
 73. Things When once we have precisely determined who our enemies 
 belonging to are) j^ j s eag y ^o know what are the things belonging to the 
 iemy enemy (res hostiles). We have shown that not only the sove- 
 reign with whom we are at war is an enemy, but also his whole 
 nation, even the very women and children. Every thing, 
 therefore, which belongs to that nation, to the state, to the 
 sovereign, to the subjects, of whatever age or sex, every 
 thing of that kind, I say, falls under the description of things 
 belonging to the enemy. 
 
 domiciled in a foreign state fn amity commerce in a hostile country, is to be 
 
 with this country may lawfully exer- considered as impressed with a hostile 
 
 cise the privileges of a subject of the character, with reference at least to so 
 
 place where he is resident, to trade with much of his commerce as may be con- 
 
 a nation in hostility with England, 1 nected with that establishment; and 
 
 Maule & Selwyn, 726, ted quaere. { See this, whether he maintains that esta- 
 
 Livingtton v. The Maryland Int. Co. 7 blishment as a partner, or as a sole trade. 
 
 Cranch, 506.} But, in general he who The Citto, 3 Rob. 38; The Portland, Id. 
 
 maintains an establishment or house of 41 to 44. C. 
 426
 
 OF THE ENEMY, ETC. 322 
 
 And, with respect to things, the case is the same as with BOOK m. 
 respect to persons : things belonging to the enemy continue CHAP ~ v * . 
 such, wherever they are. (1) But we are not hence to con- 74. con- 
 clude, any more than in the case of persons ( 71), that we tinue sucn 
 everywhere possess a right to treat those things as things be- ever y where - 
 longing to the enemy. 
 
 Since it is not the place where a thing is, which determines 
 the nature of that thing, but the character of the person to 
 whom it belongs, things belonging to neutral persons, which 75. Neu- 
 happen to be in an enemy's country, or on board an enemy's tral ^ m .^f 
 ships, are to be distinguished from those which belong to the ^ntzmy 
 enemy. But it is the owner's business to adduce evident proof 
 that they are his property: for, in default of such proof, a 
 thing is naturally presumed to belong to the nation in whose 
 possession it is found. (148) 
 
 The preceding section relates to movable property: but 
 the rule is different with respect to immovable possessions, 
 such as landed estates. Since all these do in some measure 76. Lands 
 belong to the nation, are part of its domain, of its territory, possessed by 
 and under its government (Book I. 204, 235, Book ii. f n re ^ m rs ,g n 
 114) and since the owner is still a subject of the country country? 
 as possessor of a landed estate, property of this kind does 
 not cease to be enemy's property (res hostiles), though pos- 
 sessed by a neutral foreigner. Nevertheless, war being now 
 carried on with so much moderation and indulgence, protec- 
 tions are granted for houses and lands possessed by foreigners 
 in an enemy's country. For the same reason, he who declares 
 war does not confiscate the immovable property possessed in 
 his country by his enemy's subjects. By permitting them to 
 purchase and possess such property, he has in that respect 
 admitted them into the number of his subjects. But the in- 
 come may be sequestrated, in order to prevent its being re- 
 mitted to the enemy's country. 
 
 Among the things belonging to the enemy, are likewise in- g 77. Things 
 corporeal things, all his rights, claims, and debts, excepting, due to the 
 however, those kind of rights granted by a third party, and in ^ y a ^ & 
 which the grantor is so far concerned, that it is not a matter 
 of indifference to him, in what hands they are vested. Such, [ 323 ~[ 
 for instance, are the rights of commerce. But as debts are 
 not of this number, war gives us the same rights over any sums 
 of money due by neutral nations to our enemy, as it can give 
 over his other property. (149) 
 
 {(1) See Johnson et al. v. Twenty-one (149) This was the ancient law of 
 
 Sales, Ac. Van Ness, Prize Causes, nations, Alt. Gen. v. Weedon, Parker 
 
 p. 7.} Rep. 267, though certainly denied by 
 
 (148) As to protection to neutrals' Rolle, J. At all events, it is now al- 
 
 property and modern decisions, see 1 tered; see authorities, ante, 284, n. 
 
 Chitty's Commercial Law, 385440; (134;) 1 Chitty's Commercial Law, 
 
 Id. Index, tit. Neutrals; 1 Chitty's L. 423; 1 Chitty's L. Nat. 82 to 86. C. 
 
 Nat 34, 54, 110113, 183; Id. Index, {But see Fairfax v. Hunter, 5 Cranch, 
 
 tit. Neutrals. C. 19.} 
 
 427
 
 823 OF THE ENEMY'S ALLIES, ETC. 
 
 BOOK m. When Alexander, by conquest, became absolute master of 
 CHAP ' Y ' Thebes, he remitted to the Thcssalians a hundred talents 
 which they owed to the Thebans.* The sovereign has natu- 
 rally the same right over what his subjects may owe to ene- 
 mies, he may therefore confiscate debts of this nature, if the 
 term of payment happen in the time of war ; or at least he 
 may prohibit his subjects front paying while the war continues. 
 But, at present, a regard to the advantage and safety of com- 
 merce has induced all the sovereigns of Europe to act with 
 less rigour in this point. (150) And as the custom has been 
 generally received, he who should act contrary to it would 
 violate the public faith ; for strangers trusted his subjects only 
 from a firm persuasion that the general custom would be ob- 
 served. The state does not so much as touch the sums which 
 it owes to the enemy : money lent to the public is everywhere 
 exempt from confiscation and seizure in case of war. 
 
 CHAP. VI. 
 
 CHAP, vr. OF THE ENEMY'S ALLIES OF WARLIKE ASSOCIATIONS OF 
 AUXILIARIES AND SUBSIDIES. 
 
 g 78. Trea- WE have sufficiently spoken of treaties in general, and 
 
 ties relative shall here touch on this subject only in its particular relations 
 
 to war. J.Q war> Treaties relating to war are of several kinds, and 
 
 vary in their objects and clauses, according to the will of those 
 
 who make them. Besides applying to them all that we have 
 
 said of treaties in general (Book II. Ch. XII. &c.), they may 
 
 also be divided into treaties real and personal, equal and un- 
 
 equal, &c. But they have also their specific differences, viz. 
 
 those which relate to their particular object, war. 
 
 79. Defen- Under this relation, alliances made for warlike purposes are 
 
 ive and of- divided in general into defensive and offensive alliances. In 
 
 fensive aih- ^ former, the nation engages only to defend her ally in case 
 
 he be attacked : in the latter, she unites with him for the pur- 
 
 pose of making an attack, of jointly waging war against 
 
 another nation. Some alliances are both offensive and de- 
 
 fensive ; and there seldom is an offensive alliance which is not 
 
 also a defensive one. But- it is very usual for alliances to be 
 
 I 324 ] purely defensive : and these are in general the most natural 
 
 and lawful. It would be a tedious and even a useless task to 
 
 enumerate in detail all the varieties incident to such alliances. 
 
 428 
 
 * Grotius, de Jure Belli & Pacis, lib. iii. cap. viii. \ 4. 
 (150) See ivpra, n. (149).
 
 OF THE ENEMY'S ALLIES, ETC. 324 
 
 Some are made, without restriction, against all opponents : in BOOK m. 
 others, certain states are excepted : others again are formed CHAP - TI - , 
 against such or such a nation expressly mentioned by name. 
 
 But a difference of great importance to be observed, espe- so. Dif- 
 cially in defensive alliances, is that between an intimate and ference be- 
 complete alliance, in which we agree to a union of interests, J^ associa- 
 and another, in which we only promise a stated succour. The tions and 
 alliance in which we agree to a union of interests is a warlike auxiliary 
 association : each of the parties acts with his whole force ; all treaties, 
 the allies become principals in the war ; they have the same 
 friends and the same enemies. But an alliance of this nature 
 is more particularly termed a warlike association, when it is 
 offensive. 
 
 When a sovereign, without directly taking part in the war g si. Auxi- 
 made by another sovereign, only sends him succours of troops liai r troops, 
 or ships, these are called auxiliaries. 
 
 The auxiliary troops serve the prince to whom they are sent, 
 according to their sovereign's orders. If they are purely and 
 simply sent without restriction, they are to serve equally on 
 the offensive and the defensive ; and for the particulars of their 
 operations, they are to obey the directions of the prince to 
 whose assistance they come. Yet this prince has not the free 
 and entire disposal of them, as of his own subjects : they are 
 granted to him only for his own wars ; and he has no right to 
 transfer them, as auxiliaries, to a third power. 
 
 Sometimes, this succour from a potentate who does not di- ? 82. Subsi- 
 rectly take part in the war, consists in money : and then it is dies - 
 called a subsidy. This term is now often taken in another 
 sense, and signifies a sum of money annually paid by one 
 sovereign to another, in return for a body of troops which the 
 latter furnishes to the other to carry on his wars, or keeps in 
 readiness for his service. The treaties for procuring such a 
 resource are. called subsidiary treaties. France and England 
 have at present such treaties existing with several of the 
 northern powers and princes in Germany, and continue them 
 even in times of peace. 
 
 In order, now, to judge of the morality of these several trea- g 83. When 
 ties or alliances, of their legitimacy according to the law of a nation ia 
 nations, we must, in the first place, lay down this incontro- J^ .^ 8 ^* 
 vertible principle, that It is lawful and commendable to sue- ^ T 
 cour and assist, by all possible means, a nation engaged in a 
 just war ; and it is even a duty incumbent on every nation, 
 to give such assistance, when she can give it without injury 
 to herself. But no assistance whatever is to be afforded to 
 him who is engaged in an unjust war. There is nothing in 
 this which is not demonstrated by what we have said of the 
 common duties of nations towards each other. (Book II. Ch. I.) 
 To support the cause of justice when we are able, is always 
 commendable : but, in assisting the unjust, we partake of his 
 crime, and become, like him, guilty of injustice.
 
 324 OF THE ENEMY'S ALLIES, ETC. 
 
 BOOK in. If, to the principle we have now laid down, you add the 
 
 CHAP. TI. consideration of what a nation owes to her own safety, and 
 
 g 84. and to of the care which it is so natural and so fit that she should 
 
 make alii- take to put herself in a condition to resist her enemies, you 
 
 w^j 68 f r w ^ *^e more rea >dily perceive how clear a right a nation has 
 
 T*325 ~\ * ma ^ e warlike alliances, and especially defensive alliances, 
 
 whose sole tendency is to maintain all parties in the quiet 
 
 and secure possession of their property. 
 
 But great circumspection is to be used in forming such 
 alliances. Engagements by which a nation may be drawn 
 into a war at a moment when she least expects it, ought not 
 to be contracted without very important reasons, and a direct 
 view to the welfare of the state. We here speak of alliances 
 made in time of peace, and by way of precaution against 
 future contingencies. 
 
 85. Alii- If there be question of contracting an alliance with a na- 
 ances made tion already engaged in a war, or on the point of engaging 
 tion'actaaii * n one ' * wo things are to be considered : 1. The justice of 
 engaged in 7 that nation's quarrel. 2. The welfare of the state. If the 
 war. war which a prince wages, or is preparing to wage, be un- 
 
 just, it is not allowable to form an alliance with him ; for 
 injustice is not to be supported. If he is justifiable in 
 taking up arms, it still remains to be considered whether the 
 welfare of the state allows or requires us to embark in his 
 quarrel : for it is only with a view to the welfare of the 
 state that the sovereign ought to use his authority : to that 
 all his measures should tend, and especially those of the 
 most important nature. What other consideration can 
 authorize him to expose his people to the calamities of 
 war? 
 
 86. Tacit x As it is only for the support of a just war that we are al- 
 
 ciause in lowed to give assistance or contract alliances, every alliance, 
 
 every war- ever y wa rlike association, every auxiliary treaty, contracted 
 
 wee* l ' ky wa y f anticipation in time of peace, and with no view to 
 
 any particular war, necessarily and of itself includes this 
 
 tacit clause that the treaty shall not be obligatory except 
 
 in case of a just war. On any other footing, the alliance 
 
 could not be validly contracted. (Book II. 161, 168.) 
 
 But care must be taken that treaties of alliance be not 
 thereby reduced to empty and delusive formalities. The 
 tacit restriction is to be understood only of a war which is 
 evidently unjust ; for otherwise a pretence for eluding treaties 
 would never be wanting. Is there question of contracting 
 an alliance with a power actually at war ? It behooves you 
 most religiously to weigh the justice of his cause : the judg- 
 ment depends solely on you, since you owe him no assistance 
 any further than as his quarrel is just, and your own circum- 
 stances make it convenient for you to embark in it. But 
 when once engaged, nothing less than the manifest injustice 
 of his cause can excuse you from assisting him. In a doubt-
 
 OF THE ENEMY'S ALLIES, ETC. 325 
 
 ful case, you are to presume that your ally has justice on his BOOK m. 
 Bide ; that being his concern. CHAP ' VI> 
 
 But if you entertain strong doubts, you may very fairly 
 and coromendably interpose to effect an accommodation. 
 Thus you may bring the justice of the cause to the test of 
 evidence, by discovering which of the contending parties re- [ 326 ] 
 fuses to accede to equitable conditions. 
 
 As every alliance implies the tacit clause above mentioned, g 87. To re- 
 he who refuses to succour his ally in a war that is manifestly fse suc- 
 unjust is not chargeable with a breach of alliance. ^-H,* 
 
 When alliances have thus been contracted beforehand, the ^^breach 
 question is, to determine, in the course of events, those cases O f alliance, 
 in which our engagements come in force, and we are bound 
 to act in consequence of the alliance. This is what is called \ 88. What 
 cams fcederis, or case of the alliance, and is to be discovered *^ d ^J. 
 in the concurrence of the circumstances for which the treaty 
 has been made, whether those circumstances have been ex- 
 pressly specified in it, or tacitly supposed. Whatever has 
 been promised in the treaty of alliance is due in the casus 
 foederis, and not otherwise. 
 
 As the most solemn treaties cannot oblige any one to favour \ 89. It 
 an unjust quarrel ( 86): the casus foederis never takes place never takes 
 in a war that is manifestly unjust. SrJTst war 
 
 In a defensive alliance, the casus foederis does not exist im- UDJUS 
 mediately on our ally being attacked. It is still our duty to % 90. HOW 
 examine whether he has not given his enemy just cause to itexis ^ ina 
 make war against him : for we cannot have engaged to un- j^ ensi 
 dertake his defence with the view of enabling him to insult 
 others, or to refuse them justice. If he is in the wrong, we 
 must induce him to offer a reasonable satisfaction ; and if his 
 enemy will not be contented with it, then, and not till then, 
 the obligation of defending him commences. 
 
 But if the defensive alliance contains a guarantee of all I 91. and in 
 the territories at that time possessed by the ally, the casus a treat y of 
 foederis immediately takes place whenever those territories S"* 111 * 6 - 
 are invaded or threatened with an invasion. If they are 
 attacked for a just cause, we must prevail on our ally to give 
 satisfaction ; but we may on good grounds oppose his being 
 deprived of his possessions, as it is generally with a view to 
 our own security that we undertake to guaranty them. On 
 the whole, the rules of interpretation, which we have given 
 in an express chapter,* are to be consulted, in order to de- 
 termine, on particular occasions, the existence of the casus 
 foederis. 
 
 If the state that has promised succours finds herself un- g 92. The 
 able to furnish them, her inability alone is sufficient to dis- succour is 
 pense with the obligation ; and if she cannot give . her as- not due 
 sistance without exposing herself to evident danger, thfal 
 
 * Book II. chap. xvii. 
 
 431 

 
 826 OF THE ENEMY'S ALLIES, ETC. 
 
 BOOK in. circumstance also dispenses with it. This would be one of 
 thoge cageg j n w hi c k a treaty becomes pernicious to the 
 
 furnish it, state? an( j therefore not obligatory (Book II. 160). But 
 pubiitTaflty we ^ ere s P ea k f an imminent danger, threatening the very 
 would be existence of the state. The case of such a danger is tacitly 
 exposed. and necessarily reserved in every treaty. As to remote 
 dangers, or those of no extraordinary magnitude, since 
 [ 327 ] they are inseparable from every military alliance, it would 
 be absurd to pretend that they should create an exception ; 
 and the sovereign may expose the nation to them in consider- 
 ation of the advantages which she reaps from the alliance. 
 
 In virtue of these principles, we are absolved from the 
 obligation of sending assistance to an ally while we are 
 ourselves engaged in a war which requires our whole 
 strength. If we are able to oppose our own enemies and 
 to assist our ally at the same time, no reason can be pleaded 
 for such dispensation. But, in such cases, it rests with our- 
 selves to determine what our circumstances and strength will 
 allow. It is the same with other things which may have 
 been promised, as, for instance, provisions. There is no 
 obligation to furnish an ally Avith them when we want them 
 for our own use. 
 
 f 93. Other We forbear to repeat in this place what we have said of 
 cases. various other cases, in discoursing of treaties in general, as, 
 for example, of the preference due to the more ancient ally 
 (Book II. 167), and to a protector (ibid. 204), of the 
 meaning to be annexed to the term "allies," in a treaty in 
 which they are reserved (ibid. 309). Let us only add, on 
 this last question, that, in a warlike alliance made against all 
 opponents, the allies ezcepted, this exception is to be understood 
 only of the present allies. Otherwise, it would afterwards be 
 easy to elude the former treaty by new alliances ; and it 
 would be impossible for us to know either what we are doing 
 in concluding such a treaty, or what we gain by it. 
 Two of the A case which we have not spoken of is this : Three 
 parties in powers have entered into a treaty of defensive alliance : two 
 co^n * to 6 a ^ tnem ( l uarre ^> an( * ma ke war on eacn otn er : how is the 
 rupture. & third to act ? The treaty does not bind him to assist either 
 the one or the other ; for it would be absurd to say that he 
 has promised his assistance to each against the other, or to 
 one of the two in prejudice of the other. The only obliga- 
 tion, therefore, which the treaty imposes on him, is to en- 
 deavour, by the interposition of his good offices, to effect a 
 reconciliation between his allies ; and if his mediation proves 
 unsuccessful, he remains at liberty to assist the party who 
 appears to have justice on his side. 
 
 g 94 Re- To refuse an ally the succours due to him, without having 
 
 fusai of the any just cause to allege for such refusal, is doing him an in- 
 
 cc rs . jury, since it is a violation of the perfect right which we gave 
 
 him by a formal engagement. I speak of evident cases, it
 
 OP THE ENEMY S ALLIES, ETC. 6Z 
 
 being then only that the right is perfect ; for, in those of a BOOK m. 
 doubtful nature, it rests with each party to judge what he is CHAP ' "" 
 
 able to do ( 92) : but he is to judge maturely and impartially, * of * n 
 and to act with candour. And as it is an obligation naturally a iance " 
 incumbent on us, to repair any damage caused by our fault, 
 and especially by our injustice, we are bound to indemnify 
 an ally for all the losses he may have sustained in consequence 
 of our unjust refusal. How much circumspection, therefore, 
 is to be used in forming engagements, which we cannot re- 
 fuse to fulfil without material injury to our affairs or our [ 328 ] 
 honour, and which, on the other hand, if complied with, may 
 be productive of the most serious consequences. 
 
 An engagement, which may draw us into a war, is of great g 95. The 
 moment : in it the very existence of the state is at stake, enemy's 
 He who in an alliance promises a subsidy or a body of auxilia- associates * 
 ries, sometimes imagines that he only risks a sum of money 
 or a certain number of soldiers ; whereas he often exposes 
 himself to war and all its calamities. The nation against 
 whom he furnishes assistance will look upon him as her 
 enemy ; and should her arms prove successful, she will carry 
 the war into his country. But it remains to be determined 
 whether she can do this with justice, and on what occasions. 
 Some authors* decide in general, that whoever joins our 
 enemy, or assists him against us with money, troops, or in 
 any other manner whatever, becomes thereby our enemy, and 
 gives us a right to make war against him : a cruel decision, 
 and highly inimical to the peace of nations ! It cannot be 
 supported by principles ; and happily the practice of Europe 
 stands in opposition to it. 
 
 It is true, indeed, that every associate of my enemy is 
 himself my enemy. It is of little consequence whether any 
 one makes war on me directly, and in his own name, or 
 under the auspices of another. Whatever rights war gives 
 me against my principal enemy, the like it gives me against 
 all his associates : for I derive those rights from the right t 
 security, from the care of my own defence ; and I am 
 equally attacked by the one and the other party. But the 
 question is, to know whom I may lawfully account my ene- 
 my's associate, united against me in war. 
 
 First, in that class I shall rank all those who ar& really g 96. Those 
 united in a warlike association with my enemy, and who who make a 
 make a common cause with him, though it is- only in the common . 
 name of that principal enemy that the war is carried on. inTe^Imy 
 There is no need of proving this. In the ordinary and open are his asso- 
 warlike associations, the war is carried on in the name of all ciates > 
 the allies, who are all equally enemies ( 80). 
 
 In the second place, I account as associates of my enemy, f 97. And" 
 those who assist him in his war without being obliged to it those wh(v 
 
 * See Wolf, Jus Gentium, 32 730 and 737. 
 55 2 M 433
 
 328 OF THE ENEMY'S ALLIES, ETC. 
 
 BOOK in. by any treaty. Since they freely and voluntarily declare 
 CHAP. YI. a g a i ns t nu>j they, of their own accord, choose to become my 
 assist him, enemies. If they go no farther than furnishing a determined 
 without be- succour, allowing some troops to be raised, or advancing 
 to g itb llged mone y> an d> in other respects, preserve towards me the ac- 
 treaties; customed relations of friendship and neutrality, I may 
 overlook that ground of complaint ; but still I have a right 
 to call them to account for it. This prudent caution of not 
 always coming to an open rupture with those who give such 
 assistance to our enemy, that we may not force them to join 
 him with all their strength, this forbearance, I say, has 
 gradually introduced the custom of not looking on such as- 
 sistance as an act of hostility, especially when it consists 
 J_ 329 ] only in the permission to enlist volunteers. How often have 
 the Switzers granted levies to France, at the same time that 
 they refused such an indulgence to the house of Austria, 
 though both powers were in alliance with them ! How often 
 have they allowed one prince to levy troops in their country, 
 and refused the same permission to his enemy, when they 
 were not in alliance with either ! They granted or denied 
 that favour according as they judged it most expedient for 
 themselves ; and no power has ever dared to attack them on 
 that account. But if prudence dissuades us from making 
 use of all our right, it does not thereby destroy that right. 
 A cautious nation chooses rather to overlook certain points, 
 than unnecessarily to increase the number of her enemies. 
 98. Or Thirdly, those, who, being united with my enemy by an 
 who are in offensive alliance, actively assist him in the war which he 
 aTliance 81 Declares a g a "*st me, those, I say, concur in the injury in- 
 with^im. tended against me. They show themselves my enemies, and 
 I have a right to treat them as such. Accordingly, the 
 Switzers, whose example we have above quoted, seldom grant 
 troops except for defensive war. To those in the service of 
 France, it has ever been a standing order from their sove- 
 reigns, not to carry arms against the empire, or against the 
 states of the house of Austria in Germany. In 1644, the 
 captains of the Neufchatel regiment of Guy, on information 
 that they were destined to serve under Marshal Turenne, in 
 Germany, declared that they would rather die than disobey 
 their sovereign and violate the alliances of the Helvetic 
 body. Since France has been mistress of Alsace, the Swit- 
 zers who serve in her armies never pass the Rhine to attack 
 the empire. The gallant Daxelhoffer, captain of a Berne 
 company in the French service, consisting of 200 men, and 
 of which his four sons formed the first rank, seeing the gene- 
 ral would oblige him to pass the Rhine, broke his espontoon, 
 and marched back with his company to Berne. 
 
 g 98, How Even a defensive alliance made expressly against me, or 
 a defensive j(Vhich amounts to the same thing) concluded with my enemy 
 alliance as- Curing the war, or on the certain prospect of its speedy de 
 
 434
 
 OF THE ENEMY S ALLIES, ETC. 329 
 
 claration, is an act of association against me ; and if followed .BOOK m. 
 by effects, I may look on the party who has contracted it as CHAF - YI - . 
 my enemy. The case is here precisely the same as that of a sociates 
 nation assisting my enemy without being under any obliga- with tho 
 tion to do so, and choosing of her own accord to become my encmy- 
 enemy. (See 97.) 
 
 A defensive alliance, though of a general nature, and made 1 100. An- 
 before any appearance of the present war, produces also the other case - 
 same effect, if it stipulates the assistance of the whole 
 strength of the allies : for in this case it is a real league, or 
 warlike association ; and, besides, it were absurd that I 
 should be debarred from making war on a nation who op- 
 poses me with all her might, and thus exhausting the source 
 of those succours with which she furnishes my enemy. In 
 what light am I to consider an auxiliary who comes to make 
 war on me at the head of all his forces ? It would be mock- 
 ery on his part, to pretend that he is not my enemy. What [ 330 ] 
 more could he do, were he openly to declare himself such ? 
 He shows no tenderness for me on the occasion : he only 
 wishes that a tender regard should be paid to himself. And 
 shall I suffer him to preserve his provinces in peace, and 
 secure from all danger, whilst he is doing me all the mischief 
 in his power ? No ! the law of nature, the law of nations, 
 obliges us to be just ; but does not condemn us to be dupes. 
 
 But, if a defensive alliance has not been made against me 101. in 
 in particular, nor concluded at the time when I was openly what cae it 
 preparing for war, or had already begun it, and if the allies does ! not , 
 
 , & . , ' , . . . , , , J , 6 ,, ' i n p -i produce the 
 
 have only stipulated in it that each of them shall furnish a game effcct> 
 stated succour to him who shall be attacked, I cannot require 
 that they should neglect to fulfil a solemn treaty, which they 
 had an unquestionable right to conclude without any injury 
 to me. In furnishing my enemy with assistance, they only 
 acquit themselves of a debt : they do me no wrong in dis- 
 charging it; and, consequently, they afford me no just 
 grounds for making war on them( 26). Neither can I say 
 that my safety obliges me to attack them; for I should 
 thereby only increase the number of my enemies, and, in- 
 stead of a slender succour which they furnish against me, 
 should draw on myself the whole power of those nations. 
 It is, therefore, only the troops which they send as auxili- 
 aries, that I am to consider as enemies. These are actually 
 united with my enemies and fighting against me. 
 
 The contrary principles would tend to multiply wars, and 
 spread them beyond all bounds, to the common ruin of na- 
 tions. It is happy for Europe, that, in this instance, the 
 established custom is in accord with the true principles. A 
 prince seldom presumes to complain of a nation's contributing 
 to the defence of her ally by furnishing him with succours 
 which were promised in former treaties, in treaties that 
 were not made against that prince in particular. In the last 
 
 435
 
 330 OF THE ENEMY'S ALLIES, ETC. 
 
 BOOK in. war, the United Provinces long continued to supply the queen 
 CHAP. YI. Q jj un g ar y w ith subsidies, and even with troops ; and France 
 never complained of these proceedings till those troops 
 marched into Alsace to attack the French frontier. Switzer- 
 land, in virtue of her alliance with France, furnishes that 
 crown with numerous bodies of troops, and, nevertheless, 
 lives in peace with all Europe*. 
 
 There is one case, however, which might form an exception 
 to the general rule ; it is that of a defensive war which is 
 evidently unjust. For in such case there no longer exists 
 any obligation to assist an ally ( 86, 87, 89). If you under- 
 take to do it without necessity, and in violation of your duty, 
 you do an injury to the enemy, and declare against him out 
 of mere wantonness. But this is a case that very rarely 
 occurs between nations. There are few defensive wars with- 
 out at least some apparent reason to warrant their justice or 
 necessity. Now, on any dubious occasion, each state is sole 
 judge of the justice of her own cause ; and the presumption 
 is in favour of your ally ( 86). Besides, it belongs to you 
 alone to determine what conduct on your part will be con- 
 [ 331 ] formable to your duties and to your engagements ; and con- 
 sequently nothing less than the most palpable evidence can 
 authorize the enemy of your ally to charge you with sup- 
 porting an unjust war, contrary to the conviction of your 
 own conscience. In fine, the voluntary law of nations ordains, 
 that, in every case susceptible of doubt, the arms of both 
 parties shall, with regard to external effects, be accounted 
 equally lawful (40). 
 
 g 102. Whe- The real associates of my enemy being my enemies, I 
 ther it be have against them the same rights as against the principal 
 necessary to ene my ( 95). And as their own conduct proclaims them 
 Gainst th" m y enem i es > an( * tne 7 ta ke up arms against me in the first 
 enemy's as- instance, I may make war on them without any declaration : 
 Bociatos. the war being sufficiently declared by their own act. This is 
 especially the case of those who in any manner whatever 
 concur to make an offensive war against me ; and it is like- 
 wise the case of all those whom we have mentioned in 96, 
 97, 98, 99, 100. 
 
 But it is not thus with those nations which assist my ene- 
 my in a defensive war : I cannot consider them as his asso- 
 ciates ( 101). If I am entitled to complain of their furnish- 
 ing him with succours, this is a new ground of quarrel between 
 me and them. I may expostulate with them, and, on not re- 
 ceiving satisfaction, prosecute my right, and make war on 
 them. But in this case there must be a previous declaration 
 ( 51). The example of Manlius, who made war on the 
 Galatians for having supplied Antiochus with troops, is not 
 a case in point. Grotius* censures the Roman general for 
 
 * De Jure Belli et Pacis, lib. iii. cap. iii. $ 10.
 
 OF NEUTRALITY, ETC. 331 
 
 having begun that war without a declaration. The Galatians, BOOK m. 
 in furnishing troops for an offensive war against the Romans, CHAP - YT y 
 had declared themselves enemies to Rome. It would appear, 
 indeed, that, on peace being concluded with Antiochus, Man- 
 lius ought to have waited for orders from Rome before he 
 attacked the Galatians ; and then, if that expedition was con- 
 sidered as a fresh war, he should have not only issued a de- 
 claration, but also made a demand of satisfaction, previous 
 to the commencement of hostilities ( 51). But the treaty 
 with the king of Syria had not yet received its consummation : 
 and it concerned that monarch alone, without making any 
 mention of his adherents. Therefore Manlius undertook the 
 expedition against the Galatians, as a consequence or a 
 remnant of the war with Antiochus. This is what he himself 
 very well observed in his speech to the senate ;* and he even 
 added, that his first measure was to try whether he could 
 bring the Galatians to reasonable terms. Grotius more appo- 
 sitely quotes the example of Ulysses and his followers, 
 blaming them for having, without any declaration of war, 
 attacked the Ciconians, who had sent succours to Priam 
 during the siege of Troy.f 
 
 CHAP. VII. [ 332 ] 
 
 OF NEUTRALITY AND THE PASSAGE OF TROOPS THROUGH A CHAP - Yn - 
 NEUTRAL COUNTRY. (151) 
 
 NEUTRAL nations are those who, in time of war, do not 2 103 - ^ eu - 
 take any part in the contest, but remain common friends to tral nations * 
 both parties, without favouring the arms of the one to the 
 prejudice of the other. Here we are to consider the obliga- 
 tions and rights flowing from neutrality. 
 
 In order rightly to understand this question, we must avoid $ 104. Con- 
 confounding what may lawfully be done by a nation that is duct to b 
 free from all engagements, with what she may do if she e x- observed by 
 pects to be treated as perfectly neutral in a war. As long as 
 a neutral nation wishes securely to enjoy the advantages of 
 her neutrality, she must in all things show a strict impartial- 
 ity towards the belligerent power* : for, should she favour one 
 of the parties to the prejudice of the other, she cannot com- 
 
 * Livy, lib. xxxviii. mercial Law, 4364, 383 i90 ; Id. 
 
 f Grotius, uli supra, not. 3. Index, tit Neutrals, and in Chitty's L. 
 
 (151) The modern illustrating deci- Nat 14, 3454, 153; and Id. Index, 
 sions upon neutrals, and neutrality, -will tit Neutrals. C. 
 be found collected in 1 Chitty's Com- 
 
 2*2 437
 
 382 OF NEUTRALITY, ETC. 
 
 BOOK in. plain of being treated by him as an adherent and confederate 
 CHAP. YII. Q f y g engj-Qy. jj er neutrality would be a fraudulent neu- 
 trality, of which no nation will consent to be the dupe. It is 
 sometimes suffered to pass unnoticed, merely for want of abi- 
 lity to resent it ; we choose to connive at it, rather than excite 
 a more powerful opposition against us. But the present ques- 
 tion is, to determine what may lawfully be done, not what 
 prudence may dictate according to circumstances. Let us 
 therefore examine, in what consists that impartiality which a 
 neutral nation ought to observe. 
 
 It solely relates to war, and includes two articles, 1. To 
 give no assistance when there is no obligation to give it, nor 
 voluntarily to furnish troops, arms, ammunition, or any thing 
 of direct use in war. I do not say, "to give assistance 
 equally," but "to give no assistance:" for it would be absurd 
 that a state should at one and the same time assist two nations 
 at war with each other ; and, besides, it would be impossible to 
 do it with equality. The same things, the like number of 
 troops, the like quantity of arms, of stores, &c., furnished in 
 different circumstances, are no longer equivalent succours. 
 2. In whatever does not relate to war, a neutral and impartial 
 nation must not refuse to one of the parties, on account of his 
 present quarrel, what she grants to the other. This does not 
 deprive her of the liberty to make the advantage of the state 
 still serve as her rule of conduct in her negotiations, her 
 friendly connections, and her commerce. When this reason 
 induces her to give preferences in things which are ever at the 
 free disposal of the possessor, she only makes use of her right, 
 and is not chargeable with partiality. But to refuse any of 
 [ 333 ] those things to one of the parties purely because he is at war 
 with the other, and because she wishes to favour the latter, 
 would be departing from the line of strict neutrality, 
 g 105. An I have said that a neutral state ought to give no assistance 
 ally may to either of the parties, when "under no obligation to give it." 
 Buecltrd'ue T1 " 8 restriction is necessary. We have already seen, that 
 from him" wnen a sovereign furnishes the moderate succour due in virtue 
 and remain of a former defensive alliance, he does not become an asso- 
 neuter. ciate in the war( 101). He may, therefore, fulfil his en- 
 gagement, and yet observe a strict neutrality. Of this, Europe 
 affords frequent instances. 
 
 g 106. Right When a war breaks out between two nations, all other states 
 of remain- that are not bound by treaties are free to remain neuter ; and, 
 ing neuter, jf e ither of the belligerent powers attempted to force them to 
 a junction with him, he would do them an injury, inasmuch 
 as he would be guilty of an infringement on their independ- 
 ency in a very essential point. To themselves alone it be- 
 longs to determine whether any reason exists to induce them 
 to join in the contest ; and there are two points which claim 
 their consideration : 1. The justice of the cause. If that be 
 evident, injustice is not to be countenanced : on the contrary, 
 
 438
 
 OF NEUTRALITY, ETC. 
 
 it is generous and praiseworthy to succour oppressed inno- BOOK m. 
 cence, when we possess the ability. If the case be dubious, CHAP - YIt - 
 the other nations may suspend their judgment, and not engage 
 in a foreign quarrel. 2. When convinced which party has 
 justice on his side, they have still to consider whether it be 
 for the advantage of the state to concern themselves in this 
 affair, and to embark in the war. 
 
 A nation making war, or preparing to make it, often pro- 2 10 ?- Tre a- 
 poses a treaty of neutrality to a state of which she entertains iie{ neu " 
 suspicions. It is prudent to learn betimes what she has to 
 expect, and not to run the risk of a neighbour's suddenly join- 
 ing with the enemy in the heat of the war. In every case 
 where neutrality is allowable, it is also allowable to bind our- 
 selves to it by treaty. 
 
 Sometimes even necessity renders this justifiable. Thus, 
 although it be the duty of all nations to assist oppressed inno- 
 cence (Book II. 4), yet, if an unjust conqueror, ready to in- 
 vade his neighbour's possessions, makes me an offer of neu- 
 trality when he is able to crush me, what can I do better than 
 to accept it ? I yield to necessity ; and my inability dis- 
 charges me from a natural obligation. The same inability 
 would even excuse me from a perfect obligation contracted by 
 an alliance. The enemy of my ally threatens me with a vast 
 superiority of force : my fate is in his hand : he requires me 
 to renounce the liberty of furnishing any assistance against 
 him. Necessity, and the care of my own safety, absolve me 
 from my engagements. Thus it was that Louis the Four- 
 teenth compelled Victor Amadeus, duke of Savoy, to quit the 
 party of the allies. But, then, the necessity must be very 
 urgent. It is only the cowardly, or the perfidious, who avail 
 themselves of the slightest grounds of alarm, to violate their 
 promises and desert their duty. In the late war, the king [ 334 ] 
 of Poland, elector of Saxony, and the king of Sardinia, firmly 
 held out against the unfortunate course of events, and, to their 
 great honour, could not be brought to treat without the con- 
 currence of their allies. 
 
 Another reason renders these treaties of neutrality useful, ? 108 - Ad - 
 and even necessary. A nation that wishes to secure her own dltlonal re *- 
 peace, when the flames of war are kindling in her neighbour- ing these 
 hood, cannot more successfully attain that object than by con- treaties. 
 eluding treaties with both parties, expressly agreeing what 
 each may do or require in virtue of the neutrality. This is a 
 sure mode to preserve herself in peace, and to obviate all dis- 
 putes and cavils. 
 
 Without such treaties, it is to be feared that disputes will 109. Foun- 
 often arise respecting what neutrality does or does not allow. dation of the 
 This subject presents many questions which authors have dis- ~ 
 cussed with great heat, and which have given rise to the most 
 dangerous quarrels between nations. Yet the law of nature 
 and of nations has its invariable principles, and affords rules 
 
 439
 
 334 OF NEUTRALITY, ETC. 
 
 BOOK m. on this head, as well as on the others. Some things also have 
 CHAP, vir. g rown j nto cus tom among civilized nations, and are to be con- 
 formed to by those who would not incur the reproach of un- 
 justly breaking the peace.* As to the rules of the natural 
 law of nations, they result from a just combination of the laws 
 of war, with the liberty, the safety, the advantages, the com- 
 merce, and the other rights of 1 neutral nations. It is on this 
 principle that we shall lay down the following rules : 
 \ no. How First, no act on the part of a nation, which falls within the 
 bellowed exerc * se f her rights, and is done solely with a view to her 
 moneylent own g 0( ^ without partiality, without a design of favouring 
 and every ' one power to the prejudice of another, no act of that kind, 
 kind of I say, can in general be considered as contrary to neutrality; 
 things sold, nor does ft ec0 me such, except on particular occasions, when 
 brealh'of ** cannot ta k e pl ace without injury to one of the parties, who 
 neutrality, has then a particular right to oppose it. Thus, the besieger 
 has a right to prohibit access to the place besieged (see 117 
 in the sequel). Except in cases of this nature, shall the quar- 
 rels of others deprive me of the free exercise of my rights in 
 the pursuit of measures which I judge advantageous to my 
 people ? Therefore, when it is the custom of a nation, for the 
 purpose of employing and training her subjects, to permit 
 levies of troops in favour of a particular power to whom she 
 thinks proper to intrust them, the enemy of that power can- 
 not look upon such permissions as acts of hostility, unless they 
 are given with a view to the invasion of his territories, or the 
 [ 335 ] support of an odious and evidently unjust cause. He cannot 
 even demand, as matter of right, that the like favour be 
 granted to him, because that nation may have reasons for 
 refusing him, which do not hold good with regard to his ad- 
 versary ; and it belongs to that nation alone to judge of what 
 best suits her circumstances. The Switzers, as we have al- 
 ready observed, grant levies of troops to whom they please ; 
 and no power has hitherto thought fit to quarrel with them on 
 that head. It must, however, be owned, that, if those levies 
 were considerable, and constituted the principal strength of 
 my enemy, while, without any substantial reason being al- 
 leged, I were absolutely refused all levies whatever, I should 
 have just cause to consider that nation as leagued with my 
 enemy ; and, in this case, the care of my own safety would 
 authorize me to treat her as such. 
 
 The case is the same with respect to money which a nation 
 may have been accustomed to lend out at interest. If the 
 sovereign, or his subjects, lend money to my enemy on that 
 
 * The following is an instance : It at liberty, because they were then fallen 
 
 was determined by the Dutch, that, on into the power of a nation that was in 
 
 a vessel's entering a neutral port, after neutrality with the belligerent parties. 
 
 having taken any of the enemies of her The same rule had been observed by 
 
 nation prisoners on the high seas, she England in the war between Spain and 
 
 should be obliged to set those prisoners the United Provinces.
 
 OF NEUTRALITY, ETC. 335 
 
 footing, and refuse it to me because they have not the same BOOK nr - 
 confidence in me, this is no breach of neutrality. They lodge 
 their property where they think it safest. If such preference 
 be not founded on good reasons, I may impute it to ill-will 
 against me, or to a predilection for my enemy. Yet if I 
 should make it a pretence for declaring war, both the true , 
 
 principles of the law of nations, and the general custom hap- 
 pily established in Europe, would join in condemning me. 
 While it appears that this nation lends out her money purely 
 for the sake of gaining an interest upon it, she is at liberty 
 to dispose of it according to her own discretion ; and I have 
 no right to complain. 
 
 But if the loan were evidently granted for the purpose of 
 enabling an enemy to attack me, this would be concurring in 
 the war against me. 
 
 If the troops, above alluded to, were furnished to my enemy 
 by the state herself, and at her own expense, or the money 
 in like manner lent by the state, without interest, it would no 
 longer be a doubtful question whether such assistance were 
 incompatible with neutrality. 
 
 Further, it may be affirmed on the same principles, that if a 
 nation trades in arms, timber for ship-building, vessels, and 
 warlike stores, I cannot take it amiss that she sells such 
 things to my enemy, provided she does not refuse to sell them 
 to me also at a reasonable price. She carries on her trade 
 without any design to injure me ; and by continuing it in the 
 same manner as if I were not engaged in war, she gives me 
 no just cause of complaint. 
 
 In what I have said above, it is supposed that my enemy ? in. Trad 
 goes himself to a neutral country to make his purchases. Let of neutral 
 us now discuss another case , that of neutral nations resort- ^se'which 1 
 ing to my enemy's country for commercial purposes. It is ar e at. war. 
 certain, that, as they have no part in my quarrel, they are 
 under no obligation to renounce their commerce for the sake 
 of avoiding to supply my enemy with the means of carrying [ 336 ] 
 on the war against me. Should they affect to refuse selling 
 me a single article, while at the same time they take pains to 
 convey an abundant supply to my enemy, with an evident in- 
 tention to favour him, such partial conduct would exclude 
 them from the neutrality they enjoyed. But if they only con- 
 tinue their customary trade, they do not thereby declare them- 
 selves against my interest : they only exercise a right which 
 they are under no obligation of sacrificing to me. (152) 
 
 (152) It must be a continuance only Deb. 935. It has even been holden that 
 
 of such customary trade. See Home on a British-born subject, while domiciled 
 
 Captures, 215233 ; De Tattet v. Tay- in a neutral country, may legally trade 
 
 lor, 4 Taunt. 238 ; Sell v. Reid, 1 Maule from that country with a state at war 
 
 & Selw. 727; and an able speech of with this country. Bell v. Reid, 1 Maule 
 
 Lord Erskine, 8th March, 1808, upon A Selwyn, 727. C. 
 
 the orders in Council ; 10 Cobbett's Parl. 
 
 56 441
 
 336 OF NEUTRALITY, ETC. 
 
 BOOK m. On the other hand, whenever I am at war with a nation, 
 CHAP. YII. k |. n m y ga f e ty and welfare prompt me to deprive her, as far 
 as possible, of every thing which may enable her to resist or 
 injure me. In this instance, the law of necessity exerts its full 
 force. If that law warrants me, on occasion, to seize what be- 
 longs to other people, will it not likewise warrant me to inter- 
 cept every thing belonging to'war, which neutral nations are 
 carrying to my enemy ? Even if I should, by taking such mea- 
 sures, render all those neutral nations my enemies, I had better 
 run that hazard, than suffer him who is actually at war with me 
 thus freely to receive supplies and collect additional strength 
 to oppose me. It is, therefore, very proper, and perfectly 
 conformable to the law of nations (which disapproves of mul- 
 tiplying the causes of war), not to consider those seizures of 
 the goods of neutral nations as acts of hostility. 
 
 When I have notified to them my declaration of war against 
 such or such a nation, if they will afterwards expose them- 
 selves to risk in supplying her with things which serve to 
 carry on war, they will have no reason to complain if their 
 goods fall into my possession ; and I, on the other hand, do 
 not declare war against them for having attempted to convey 
 such goods. They suffer, indeed, by a war in which they have 
 no concern ; but they suffer accidentally. I do not oppose 
 their right : I only exert my own ; and if our rights clash 
 with and reciprocally injure each other, that circumstance is 
 the effect of inevitable necessity. Such collisions daily hap- 
 pen in war. When, in pursuance of my rights, I exhaust a 
 country from which you derive your subsistence, when I be- 
 siege a city with which you carried on a profitable trade, I 
 doubtless injure you ; I subject you to losses and inconve- 
 niences ; but it is without any design of hurting you. I only 
 make use of my rights, and consequently do you no injustice. 
 But that limits may be set to these inconveniences, and that 
 the commerce of neutral nations may subsist in as great a de- 
 gree of freedom as is consistent with the laws of war, there 
 are certain rules to be observed, on which Europe seems to be 
 generally agreed. 
 
 g 112. Con- The first is, carefully to distinguish ordinary goods which 
 traband have no relation to war, from those that are peculiarly sub- 
 goods, servient to it. Neutral nations should enjoy perfect liberty to 
 trade in the former : the belligerent powers cannot with any rea- 
 [ 337 ] * n refuse it, or prevent the importation of such goods into the 
 enemy's country : the care of their own safety, the necessity of 
 self-defence, does not authorize them to do it, since those things 
 will not render the enemy more formidable. An attempt to 
 interrupt or put a stop to this trade would be a violation 
 of the rights of neutral nations, a flagrant injury to them ; 
 necessity, as we have above observed, being the only reason 
 which can authorize any restraint on their trade and navigation 
 to the ports of the enemy. England and the United Provinces 
 
 442
 
 OF NEUTRALITY, ETC. 
 
 337 
 
 having agreed, in the treaty of Whitehall, signed on the 22d of BOOK m. 
 August, 1689, to notify to all states not at war with France, CHAP ' TU ' 
 that they would attack every ship bound to or coming from 
 any port of that kingdom, and that they beforehand declared 
 every such ship to be a lawful prize, Sweden and Denmark, 
 from whom some ships had been taken, entered into a coun- 
 ter-treaty on the 17th of March, 1693, for the purpose of 
 maintaining their rights and procuring just satisfaction. And 
 the two maritime powers, being convinced that the complaints 
 of the two crowns were well founded, did them justice.* 
 
 Commodities particularly useful in war, atid the importation 
 of which to an enemy is prohibited, are called contraband 
 goods. Such are arms, ammunition, timber for ship-building, 
 every kind of naval stores, horses, and even provisions, in cer- 
 tain junctures, when we have hopes of reducing the enemy 
 by famine.t(153) 
 
 But, in order to hinder the transportation of contraband $ 113 - whe - 
 goods to an enemy, are we only to stop and seize them, P a 7~ ^a^ma 
 ing the value to the owner, or have we a right to confiscate beconfi8ca- 
 them ? Barely to stop those goods would in general prove ted. 
 an ineffectual mode, especially at sea, where there is no pos- 
 sibility of entirely cutting off all access to the enemy's har- 
 bours. Recourse is therefore had to the expedient of confis- 
 cating all contraband goods that we can seize on, in order that 
 the fear of loss may operate as a check on the avidity of gain, 
 and deter the merchants of neutral countries from supplying 
 the enemy with such commodities. And, indeed, it is an ob- 
 ject of such high importance to a nation at war to prevent, as 
 far as possible, the enemy's being supplied with such articles 
 
 * See other instances in Grotius de sold both arms and provisions to the 
 
 Jure Belli et Pacis, lib. iii. cap. i. 5, Spaniards, they could not with propri- 
 
 not. 6. ety have attempted to forbid neutral 
 
 f The Pensionary De Witt, in a let- nations to carry on a similar trade, 
 
 ter of January 14, 1654, acknowledges (Grotius, Hist of the Disturbances in 
 
 that it would be contrary to the law of the Low Countries, book vi.) Never- 
 
 nations to prevent neutrals from carry- theless, in 1646, the United Provinces 
 
 ing corn to an enemy's country; but published an edict prohibiting their 
 
 he says that we may lawfully prevent own subjects in general, and even neu- 
 
 them from supplying the enemy with tral nations, to carry either provisions 
 
 cordage and other materials for the rig- or any other merchandise to Spain, be- 
 
 ging and equipment of hip of war. cause the Spaniards, "after having, 
 
 In 1597, queen Elizabeth would not under the appearance of commerce, al- 
 allow the Poles and Danes to furnish lured foreign vessels to their ports, de- 
 Spain with provisions, much less with tained them, and made use of them as 
 arms, alleging that, "according to the ships of war." And for this reason, 
 rules of war, it is lawful to reduce an the same edict declared that " the con- 
 enemy even by famine, with the view federates, when blocking up their ene- 
 of obliging him to sue for peace." The mies' ports, would seize upon every 
 United Provinces, finding it necessary vessel they saw steering towards those 
 to obsftrvo u greater degree of circum- places." Ibid, book xv. p. 572. Ed. 
 spection, did not prevent neutral na- A.D. 1797. 
 
 *ions from carrying on every kind of (153) What are contraband goods, 
 
 commerce with Spain. It is true, in- see 1 Chitty's Comml. L. 444 449, 
 
 doed, that, while their own subjects and Chitty's L. Nat. 119 128. C.
 
 338 OF NEUTRALITY, ETC. 
 
 BOOK in. as will add to his strength and render him more dangerous, 
 . CHAP - TII- that necessity and the care of her own welfare and safety au- 
 thorize her to take effectual methods for that purpose, and to 
 declare that all commodities of that nature, destined for the 
 enemy, shall be considered as lawful prize. On this account 
 she notifies to the neutral states her declaration of war( 63;) 
 whereupon, the letter usually 'give orders to their subjects to 
 refrain from all contraband commerce with the nations at war, 
 declaring, that if they are captured in carrying on such trade, 
 the sovereign will not protect them. This rule is the point 
 where the general* custom of Europe seems at present fixed, 
 after a number of variations, as will appear from the note of 
 Grotius, which we have just quoted, and particularly from the 
 ordinances of the kings of France, in the years 1543 and 1584, 
 which only allow the French to seize contraband goods, and 
 to keep them on paying the value. The modern usage is cer- 
 tainly the most agreeable to the mutual duties of nations, and 
 the best calculated to reconcile their respective rights. The 
 nation at war is highly interested in depriving the enemy of 
 all foreign assistance ; and this circumstance gives her a right 
 to consider all those, if not absolutely as enemies, at least as 
 people that feel very little scruple to injure her, who carry to 
 her enemy the articles of which he stands in need for the sup- 
 port of the war. She, therefore, punishes them by the con- 
 fiscation of their goods. Should their sovereign undertake to 
 protect them, such conduct would be tantamount to his fur- 
 nishing the enemy with those succours himself: a measure 
 which were undoubtedly inconsistent with neutrality. When 
 a nation, without any other motive than the prospect of gain, 
 is employed in strengthening my enemy, and regardless of the 
 irreparable evil which she may thereby entail upon me,* she 
 is certainly not my friend, and gives me a right to consider 
 and treat her as an associate of my enemy. In order, there- 
 fore, to avoid perpetual subjects of complaint and rupture, it 
 has, in perfect conformity to sound principles, been agreed 
 that the belligerent powers may seize and confiscate all con- 
 traband goods which neutral persons shall attempt to carry to 
 their enemy, without any complaint from the sovereign of 
 those merchants ; as, on the other hand, the power at war 
 does not impute to the neutral sovereigns these practices of 
 their subjects. Care is even taken to settle every particular 
 of this kind in treaties of commerce and navigation. 
 J 114. We cannot prevent the conveyance of contraband goods, 
 
 Searching without searching neutral vessels that we meet at sea : we 
 [ 339 ] have therefore a right to search them. Some powerful nations 
 
 * In our time, the king of Spain pro- with military stores ; and thus he 
 
 hibited all Hamburgh ships from en- obliged the Hamburghers to cancel their 
 
 tering his harbours, because that city treaty with the Barbarians. Ed. A. D, 
 
 had engaged to furnish the Algerines 1797. 
 441 

 
 OF NEUTRALITY, ETC. 
 
 have indeed, at different times, refused to submit to this BOOK m. 
 search. "After the peace of Vervins, Queen Elizabeth, con- CHAP ' YIT '. 
 tinuing the war against Spain, requested permission of the neutral 
 king of France to cause all French ships bound for Spain to shl P s -( 154 ) 
 be searched, in order to discover whether they secretly car- 
 ried any military stores to that country : but this was refused, 
 as an injury to trade, and a favourable occasion for pillage."* 
 At present, a neutral ship refusing to be searched, would from 
 that proceeding alone be condemned as a lawful prize. (154) 
 But, to avoid inconveniences, oppression, and every other 
 abuse, the manner of the search is settled in the treaties of 
 navigation and commerce. It is the established custom at 
 present to give full credit to the certificates, bills of lading, 
 &c., produced by the master of the ship, unless any fraud 
 appear in them, or there be good reasons for suspecting 
 it. (155) 
 
 If we find an enemy's effects on board a neutral ship, we 115. Ene- 
 
 seize them by the rights of war : (156) but we are naturally m y' s P r - 
 J ^ ' J perty on 
 
 (154) As to the right of visiting and 
 searching neutral ships, see the cele- 
 brated letter of the Duke of Newcastle 
 to the Prussian Secretary, A. D. 1752 ; 
 1 Collect. Jurid. 138; and Halliday's 
 Life of Lord Mansfield; Elements of 
 General History, vol. iii. p. 222 ; Mar- 
 shall on Insurance, book i. ch. 8, sect. 
 5 ; Garrets v. Kensington, 8 Term Rep. 
 230 ; Lord Erskine's Speech upon Or- 
 ders in council, 8 March, 1808; 10 
 Cobbett's Parl. Deb. 955 ; Baring upon 
 Orders in Council, p. 102. Clearly at 
 this day the right of search exists prac- 
 tically as well as theoretically. 
 
 The right of search, and of the con- 
 sequence of resistance, and of the pa- 
 pers and documents that ought to be 
 found on board the neutral vessels, are 
 most clearly established by the best 
 modern decisions ; see Barker v. Slakes, 
 9 East Rep. 283, and numerous other 
 cases, collected in 1 Chitty's Commer- 
 cial Law, 482489; Chitty's L. Nat 
 190 199. The international law 
 upon the subject will be found admi- 
 rably summed up by Sir \Vm. Scott, in 
 his Judgment in the case of the Maria, 
 1 Rob. Rep. 346, and 1 Edwards's Rep. 
 208, confirming the authority of Vat- 
 tel, and on which he thus concludes: 
 " I stand with confidence upon all fair 
 principles of reason, upon the distinct 
 authority of Vattel, and upon the insti- 
 tutes of other great maritime countries, 
 as well as those of our own country, 
 when I venture to lay it down that, by 
 the law of nations, as now understood, 
 
 a deliberate and continued resistance 
 of search, on the part of a neutral ves- 
 sel, to a lawful cruiser, is followed by 
 the legal consequences of confiscation." 
 And see Dispatch, 3 Rob. Rep. 278; 
 Elsabc, 4 Rob. Rep. 408 ; Pennsylvania, 
 1 Acton's Rep. 33; Saint Juan Bap- 
 tista, 5 Rob. Rep. 33 ; Maria, 1 Rob. 
 Rep. 340; Mentor, 1 Edward, 268; Ca- 
 therina Elizabeth, 5 Rob. Rep. 232. See 
 the modern French view of the right 
 of visitation and search, Cours de 
 Droits Public, torn. i. p. 84. Paris : A. D. 
 1830. C. { And the American, The 
 Eleanor, 2 Wheat. Rep. 345; The U. 
 States v. La Jeune Eugenie, 2 Mass. Rep. 
 409 ; The Marianna Flora, 3 Mass. Rep. 
 116 ; Maley v. Shattuck, 3 Cranch, 458.} 
 
 * Grotius, ubi supra. 
 
 (155) As to papers and documents 
 that ought to be on board, see 1 Chit- 
 ty's Commercial Law, 487 489, and 
 Chitty's L. Nat. 196199, and autho- 
 rities there collected. The owner of the 
 neutral vessel has no remedy for loss 
 of voyage, or other injury occasioned 
 by the reasonable exercise of the right 
 of search (infra note), but he may in- 
 sure against the risk ; Barker v. Slakes, 
 9 East, 283. C. {See Maley v. Shat- 
 tuck, 3 Cranch, 458. } 
 
 (15.6) Particular states have relaxed 
 the rigour of this rule, and, by express 
 treaty, granted immunity, by establish- 
 ing a maxim, " Free ships, free goods ;" 
 see instances, 5 Rob. Rep. 52; 6 Rob. 
 Rep. 24, 41 358. C. 
 
 2N 
 
 445
 
 339 OF NEUTRALITY, ETC. 
 
 BOOK m. bound to pay the freight to the master of the vessel, who is 
 CHAP - YII v not to suffer by such seizure.* (157) 
 
 board a neu- The effects of neutrals, found in an enemy's ships, are to 
 trai ship.^ |j e restored to the owners, against whom there is no right of 
 j- ral '^y confiscation ; but without any allowance for detainer, decay, 
 on board an & c - (158) The loss sustained by the neutrals on this occa- 
 enemy's sion is an accident to which they exposed themselves by em- 
 shi P- barking their property in an enemy's ship ; and the captor, 
 
 in exercising the rights of war, is not responsible for the ac- 
 cidents which may thence result, any more than if his cannon 
 kills a neutral passenger who happens unfortunately to be on 
 board an enemy's vessel. (158) 
 
 117. Trade Hitherto we have considered the commerce of neutral na- 
 t * ns W ^ *^ e ter " tor ^ es f tne enemy in general. There is a 
 P ar ti cu l ar case i n which the rights of war extend still farther. 
 All commerce with a besieged town is absolutely prohibited. 
 Blockade. If I lay siege to a place, or even simply blockade it, I have a 
 right to hinder any one from entering, and to treat as an 
 enemy whoever attempts to enter the place, or carry any 
 thing to the besieged, without my leave ; for he opposes my 
 undertaking, and may contribute to the miscarriage of it, and 
 thus involve me in all the misfortunes of an unsuccessful war. 
 [ 340 ] King Demetrius hanged up the master and pilot of a vessel 
 carrying provisions to Athens at a time when he was on the 
 point of reducing that city by famine.f In the long and 
 bloody war carried on by the United Provinces against Spain 
 
 * {See the rule as recognised by the 1 Molloy, 1 18 j and Twilling Ruet, 5 
 
 United States. The Nereide, 9 Cranch, Rob. Rep. 82. C. 
 
 110.} "I have obtained," said the am- (158) 1 Chitty's Commercial Law, 
 bassador Boreel, in a letter to the Grand 440 ; Grotius, b. iii. c. vi. vi. ; Mar- 
 Pensionary, De Witt, " the abrogation shall on Insurance, b. i. c. viii. v. Tho 
 of that pretended French law, that ene- loss of voyage and damage may be in- 
 mies' property involves in confiscation the sured against; Barker v. Slakes, 9 East, 
 property of friends ; so that, if hence- Rep. 283. C. 
 
 forward any effects belonging to the (159) As to violation of blockade in 
 
 enemies of France be found in a free general, see the modern decisions, 1 
 
 Dutch vessel, those effects alone shall Chitty's Commercial Law, 449 and 
 
 be liable to confiscation; and the vessel 460492; Chitty's L. Nat. 129 144, 
 
 shall be released, together with all the and 259; and see, as to the distinction 
 
 other property on board. But I find it between a military and commercial 
 
 impossible to obtain the object of the blockade, and their effect, 1 Acton's Rep. 
 
 twenty-fourth, article of my instructions, 128. On a question of violation of 
 
 which gays, that the immunity of the vee- blockade, Sir W. Scott said, " Three 
 
 set shall extend to the eargo, even if enc- things must be proved 1st, the exist- 
 
 mies' property." De Witt's Letters and ence of an actual blockade ; 2dly, the 
 
 Negotiations, vol. i. p. 80. Such a law knowledge of the party supposed to have 
 
 as the latter would be more natural than offended ; and 3dly, some act of viola- 
 
 the former. Edit A. D. 1797. tion, either by going in or coming out 
 
 (157) [Schwartz v. The Int. Co. of with a cargo laden after the commence- 
 
 North America, 3 Wash. C. C. Rep. ment of blockade." In case of Betsy, 
 
 117.J But, in these cases, the freight 1 Rob. Rep. 92, and Nancy, 1 Acton's 
 
 to be paid is not necessarily to be mea- Rep. 59. C. \Fitzsimmons v. TheNew- 
 
 sured by the terms of the charter-party, port Ins. Co., 4 Cranch, 185. } 
 f Plutarch, in Demetrio.
 
 OF NEUTRALITY, ETC. 340 
 
 for the recovery of their liberties, they would not suffer the BOOK m. 
 English to carry goods to Dunkirk, before which the Dutch CHAP - Yn - 
 fleet lay.* 
 
 A neutral nation preserves, towards both the belligerent us. im- 
 powers, the several relations Avhich nature has instituted be- partial offi- 
 tween nations. She ought to show herself ready to render ^ lg of neu ' 
 them every office of humanity reciprocally due from one na- 
 tion to another : she ought, in every thing not directly relat- 
 ing to war, to give them all the assistance in her power, and 
 of which they may stand in need. Such assistance, however, 
 must be given with impartiality ; that is to say, she must not 
 refuse any thing to one of the parties on account of his being 
 at war with the other ( 104). But this is no reason why a 
 neutral state, under particular connections of friendship and 
 good neighbourhood with one of the belligerent powers, may 
 not, in every thing that is unconnected with war, grant him 
 all those preferences which are due to friends: much less 
 does she afford any grounds of exception to her conduct, if, in 
 commerce, for instance, she continues to allow him such indul- 
 gences as have been stipulated in her treaties with him. She 
 ought, therefore, as far as the public welfare will permit, 
 equally to allow the subjects of both parties to visit her terri- 
 tories on business, and there to purchase provisions, horses, 
 and, in general, every thing they stand in need of, unless 
 she has, by a treaty of neutrality, promised to refuse to both 
 parties such articles as are used in war. Amidst all the wars 
 which disturb Europe, the Switzers preserve their territories 
 m a state of neutrality. Every nation indiscriminately is al- 
 lowed free access for the purchase of provisions, if the coun- 
 try has a surplus, and for that of horses, ammunition, and 
 arms. 
 
 An innocent passage is due to all nations with whom a state \ 119. Pas- 
 is at peace (Book II. 123) ; and this duty extends to troops sa s e of 
 as well as to individuals. But it rests with the sovereign of *P S h 
 the country to judge whether the passage be innocent ; and it ne ntrfi 
 is very difficult for that of an army to be entirely so. In the country, 
 late wars of Italy the territories of the republic of Venice and 
 those of the pope sustained very great damage by the passage 
 of armies, and often became the theatre of the war. 
 
 Since, therefore, the passage of troops, and especially that \ 120. Pas- 
 of a whole army, is by no means a matter of indifference, he sa s e to be 
 who desires to march his troops through a neutral country, asked - 
 must apply for the sovereign's permission. To enter his ter- 
 ritory without his consent, is a violation of his rights of sove- 
 reignty and supreme dominion, by virtue of which, that coun- 
 try is not to be disposed of for any use whatever, without 
 his express or tacit permission. Now, a tacit permission for [ 341 ] 
 the entrance of a body of troops is not to be presumed, since 
 
 Grotius, ubi supra. 
 
 447
 
 341 OF NEUTRALITY, ETC. 
 
 BOOK in. their entrance may be productive of the most serious conse- 
 CHAP - Tn - quences. 
 
 121. it ^ tne neutral sovereign has good reasons for refusing a 
 may be re- passage, he is not obliged to grant it, the passage in that 
 fused for case being no longer innocent. 
 
 good rea- j n a jj d ou btful cases we must submit to the judgment of 
 a 122. in *he proprietor respecting the' innocence of the use we desire 
 what case it to make of things belonging to another (Book II. 128, 130), 
 may be and must acquiesce in his refusal, even though we think it 
 forced. unjust. If the refusal be evidently unjust, if the use, and, 
 in the case now before us, the passage be unquestionably in- 
 nocent, a nation may do herself justice, and take by force 
 what is unjustly denied to her. But we have already observed, 
 that it is very difficult for the passage of an army to be ab- 
 solutely innocent, and much more so for the innocence to be 
 very evident. So various are the evils it may occasion, and 
 the dangers that may attend it, so complicated are they in 
 their nature, and so numerous are the circumstances with 
 which they are connected, that, to foresee and provide for 
 every thing, is next to impossible. Besides, self-interest has 
 so powerful an influence on the judgments of men, that if he 
 who requires the passage is to be the judge of its innocence, 
 he will admit none of the reasons brought against it ; and 
 thus a door is opened to continual quarrels and hostilities. 
 The tranquillity, therefore, and the common safety of nations 
 require that each should be mistress of her own territory, and 
 at liberty to refuse every foreign army an entrance, when she 
 has not departed from her natural liberties in that respect, by 
 treaties. From this rule, however, let us except those very 
 uncommon cases which admit of the most evident demonstra- 
 tion that the passage required is wholly unattended with in- 
 convenience or danger. If, on such an occasion, a passage be 
 forced, he who forces it will not be so much blamed as the na- 
 tion that has indiscreetly subjected herself to this violence. 
 Another case, which carries its own exception on the very 
 face of it, and admits not of the smallest doubt, is that of ex- 
 treme necessity. Urgent and absolute necessity suspends all 
 the rights of property (Book II. 119, 123) : and if the pro- 
 prietor be not under the same pressure of necessity as you, it 
 is allowable for you, even against his will, to make use of what 
 belongs to him. When, therefore, an army find themselves 
 exposed to imminent destruction, or unable to return to their 
 own country, unless they pass through neutral territories, they 
 have a right to pass in spite of the sovereign, and to force 
 their way, sword in hand. But they ought first to request a 
 passage, to offer securities, and pay for whatever damages they 
 may occasion. Such was the mode pursued by the Greeks on 
 their return from Asia, under the conduct of Agesilaus.* 
 
 * Plutarch's Life of Agesilaus.
 
 OF NEUTRALITY, ETC. 342 
 
 Extreme necessity may even authorize the temporary seizure BOOK m. 
 of a neutral town, and the putting a garrison therein, with a CHAP - Tn - 
 view to cover ourselves from the enemy, or to prevent the exe- 
 cution of his designs against that town, when the sovereign is 
 not able to defend it. But when the danger is over, we must 
 immediately restore the place, arid pay all the charges, in- 
 conveniences, and damages, which we have occasioned by 
 seizing it. 
 
 When the passage is not of absolute necessity, the bare 123. The 
 danger which attends the admission of a powerful army into fear of dan - 
 our territory, may authorize us to refuse them permission to^ a " t ^" 
 enter. We may have reason to apprehend that they will be f usalj 
 tempted to take possession of the country, or at least to act 
 as masters while they are in it, and to live at discretion. Let 
 it not be said, with Grotius,* that he who requires the passage 
 is not to be deprived of his right on account of our unjust 
 fears. A probable fear, founded on good reasons, gives us a 
 right to avoid whatever may realize it ; and the conduct of 
 nations affords but too just grounds for the fear in question. 
 Besides, the right of passage is not a perfect right, unless in 
 a case of urgent necessity, or when we have the most perfect 
 evidence that the passage is innocent. 
 
 But, in the preceding section, I suppose it impracticable to 124. or a 
 obtain sufficient security which shall leave us no cause to ap- demand of 
 prehend any hostile attempts or violent proceedings on the g^"!^ 
 part of those who ask permission to pass. If any such secu- cur it y . 
 rity can be obtained, (and the safest one is, to allow them to 
 pass only in small bodies, and upon delivering up their arms, 
 as has been sometimes required, f) the reason arising from fear 
 no longer exists. But those who wish to pass should consent 
 to give every reasonable security required of them, and con- 
 sequently submit to pass by divisions and deliver up their arms, 
 if the passage be denied them on any other terms. The choice 
 of the security they are to give does not rest with them. Host- 
 ages, or a bond, would often prove very slender securities. Of 
 what advantage will it be to me to hold hostages from one 
 who will render himself master over me ? And as to a bond, 
 it is of very little avail against a priuce of much superior 
 power. 
 
 But, is it always incumbent on us to give every security a-g 125. Whe- 
 nation may require, when we wish to pass through her terri- ther always 
 tories ? In the first place, we are to make a distinction be- n f cessai 7 to 
 tween the different reasons that may exist for our passing SndTS. 
 through the country; and we are next to consider the man- curity re- 
 ners of the people whose permission we ask. If the passage quired, 
 be not essentially necessary, and can be obtained only on sus- 
 picious or disagreeable conditions, we must relinquish all idea 
 
 * Book ii. chap. ii. g 13, note 5. 
 
 j- By the Eleans, and the ancient inhabitants of Cologne. See Grotius, ibid. 
 W 2s2 449
 
 342 OF NEUTRALITY, ETC. 
 
 BOOK m. of it, as in the case of a refusal ( 122). But, if necessity au- 
 JJHAP. TII. th or i zes me t p asSj the conditions on which the passage will 
 
 be granted may be accepted or rejected, according to the man- 
 ners of the people I am treating with. Suppose I am to cross 
 [ 343 ] the country of a barbarous, savage, and perfidious nation, 
 shall I leave myself at their discretion, by giving up my arms 
 and causing my troops to march in divisions ? No one, I pre- 
 sume, will condemn me to take so dangerous a step. Since 
 necessity authorizes me to pass, a kind of new necessity arises 
 for my passing in such a posture as will secure me from any 
 ambuscade or violence. I will offer every security that can 
 be given without foolishly exposing myself; and if the offer is 
 rejected, I must be guided by necessity and prudence, and, 
 let me add, by the most scrupulous moderation, in order to 
 avoid exceeding the bounds of that right which I derive from 
 necessity. 
 
 g 126. E- If the neutral state grants or refuses a passage to one of the 
 quality to be parties at war, she ought, in like manner, to grant or refuse 
 observed to- ^ ^ ^ other, unless a change of circumstances affords her 
 
 wards both , . , . , TT . 
 
 parties as to substantial reasons for acting otherwise. Without such rea- 
 the passage, sons, to grant to one party what she refuses to the other, would 
 be a partial distinction, and a departure from the line of strict 
 neutrality. 
 
 g 107. No When I have no reason to refuse a passage, the party against 
 complaint whom it is granted has no right to complain of my conduct, 
 hes agamst muc j 1 } ess to ma k e jt the ground of a hostile attack upon me, 
 etate for since I have done no more than what the law of nations en- 
 granting a joins ( 119). Neither has he any right to require that I 
 passage. should deny the passage ; for he must not pretend to hinder 
 me from doing what I think agreeable to my duty. And even 
 on those occasions when I might with justice refuse permission 
 to pass, I am at liberty to abstain from the exertion of my 
 right. But especially when I should be obliged to support 
 my refusal by the sword, who will take upon him to complain 
 of my having permitted the war to be carried into his country, 
 rather than draw it on myself? No sovereign can require that 
 I should take up arms in his favour, unless obliged to it by 
 treaty. But nations, more attentive to their own interests 
 than to the observance of strict justice, are often very loud on 
 this pretended subject of complaint. In war, especially, they 
 stick at no measures ; and if by their threats they can induce 
 a neighbouring state to refuse a passage to their enemy, the 
 generality of their rulers consider this conduct only as a stroke 
 of good policy. 
 
 state may " ^ powerful state will despise these unjust menaces : firm 
 refuse it and unshaken in what she thinks due to justice and to her own 
 from a fear reputation, she will not suffer herself to be diverted by the fear 
 of the re- O f a groundless resentment : she will not even bear the menace. 
 the^pMite But a wea ^ nation, unable to support her rights, will be under 
 party; a necessity of consulting her own safety; and this important
 
 OF NEUTRALITY, ETC. 343 
 
 concern will authorize her to refuse a passage, which would BOOK 
 expose her to dangers too powerful for her to repel. 
 
 nr. 
 
 AP. VII- 
 
 Another fear may also warrant her in refusing a passage, 129. And 
 namely, that of involving her country in the disorders and lest hcr 
 calamities of war. For, even if the party against whom a c un .^ y , 
 
 ..',, T_ j . . should be- 
 
 passage is requested, should observe such moderation as not come the 
 to employ menaces for the purpose of intimidating the neutral theatre of 
 nation into a refusal, he will hardly fail to demand a passage war - 
 for himself also : he will march to meet his enemy ; and thus [ 344 ] 
 the neutral country will become the theatre of war. The in- 
 finite evils of such a situation are an unexceptionable reason 
 for refusing the passage. In all these cases, he who attempts 
 to force a passage, does an injury to the neutral nation, and 
 gives her most just cause to unite her arms with those of his 
 adversary. The Switzers, in their alliances with France, have 
 promised not to grant a passage to her enemies. They ever 
 refuse it to all sovereigns at war, in order to secure their fron- 
 tiers from that calamity ; and they take care that their terri- 
 tory shall be respected. But they grant a passage, to recruits, 
 who march in small bodies, and without arms. 
 
 The grant of permission to pass includes a grant of every g 130. mat 
 thing which is naturally connected with the passage of troops, is included 
 and without which the passage would be impracticable ; such jj the rant 
 as the liberty of carrying with them whatever may be neces- passa s e - 
 sary for an army, that of exercising military discipline on 
 the soldiers and officers, and of purchasing, at a fair price, 
 every thing the army may want, unless, through fear of scar- 
 city, a particular exception has been made, to oblige them to 
 carry with them their own provisions. 
 
 He who grants the passage is bound to render it safe, as far 131. Safe- 
 as depends on him. Good faith requires this ; and to act ty of the 
 otherwise would be ensnaring those to whom the passage is P assa s e - 
 granted. 
 
 For this reason, and because foreigners can do nothing in g 132, No 
 a territory against the will of the sovereign, it is unlawful to hostility to 
 attack an enemy in a neutral country, or to commit in it any ^ ^^j,. 
 other act of hostility. The Dutch East- India fleet having pot tnd eonn- 
 into Bergen, in Norway, in 1666, to avoid the English, the try. (ieo> 
 British admiral had the temerity to attack them there. But 
 the governor of Bergen fired on the assailants ; and the court 
 of Denmark complained, though perhaps too faintly, of an at- 
 tempt so injurious to her rights and dignity.* (160) 
 
 * The author of the " Present State sea, within cannon-shot of the coast, is 
 
 of Denmark," written in English, pre- considered as making a part of the ter- 
 
 tends that the Danes had engaged to ritory; and, for that reason, a vessel 
 
 deliver up the Dutch fleet, but that some taken under the cannon of a neutral 
 
 seasonable presents, made to the court fortress, is not a lawful prize. Ante, 
 
 of Copenhagen, saved it. Chap. x. book i. chap, xxiii. s. 289, p. 129 ; Mar- 
 
 (160) At present, by the general ten's L. N. b. viii. chap. vi. s. 6 ; and 
 
 uiw of nations, the whole space of the see 1 Molloy, b. i. chap. iii. s. 7 ; and 
 
 451
 
 344 OF NEUTRALITY, ETC. 
 
 BOOK. in. To conduct prisoners, to convey spoil to a place of safety, 
 CHAP, vir^ are actg Q f war ^ conse q uen tly not to be done in a neutral coun- 
 try ; and whoever should permit them, would depart from the 
 line of neutrality, by favouring one of the parties. But I here 
 speak of prisoners and spoil not yet perfectly in the enemy's 
 power, and whose capture is, as it were, not yet fully com- 
 pleted. A flying party, for instance, cannot make use of a 
 neighbouring and neutral country as a place of deposit to se- 
 cure their prisoners and spoil. To permit this, would be 
 giving countenance and support to their hostilities. When 
 the capture is completed, and the booty absolutely in the 
 enemy's power, no inquiry is made how he came by such 
 effects, and he may dispose of them in a neutral country. A 
 privateer carries his prize into a neutral port, and there freely 
 [ 345 ] sells it ; but he cannot land his prisoners there, for the pur- 
 pose of keeping them in confinement, because the detention 
 and custody of prisoners of war is a continuation of hostilities, 
 g 133. Neu- On the other hand, it is certain that, if my neighbour af- 
 trai country f or( } s a retreat to my enemies, when defeated and too much 
 aretoeaf to* weakened to' escape me, and allows them time to recover, and 
 troops, that watch a favourable opportunity of making a second attack on 
 they may my territories, this conduct, so prejudicial to my safety and 
 again attack interests, would be incompatible with neutrality. If, therefore, 
 my enemies, on suffering a discomfiture, retreat into his coun- 
 try, although charity will not allow him to refuse them permis- 
 sion to pass in security, he is bound to make them continue 
 their march beyond his frontiers as soon as possible, and not 
 suffer them to remain in his territories on the watch for a con- 
 venient opportunity to attack me anew ; otherwise he gives 
 me a right to enter his country in pursuit of them. Such treat- 
 ment is often experienced by nations that are unable to com- 
 mand respect. Their territories soon become the theatre of 
 war ; armies march, encamp, and fight in it, as in a country 
 open to all comers. 
 
 g 134. Con- Troops to whom a passage is granted are not to occasion 
 
 d b * t0 d b *^ e ^ eas * damage in the country ; they are to keep to the pub- 
 
 7 lie roads, and not enter the possessions of private persons, 
 
 chap. i. s. 16. { The Ann, 1 Gall. Rep. 62. } allowed to originate on neutral ground, 
 And Professor Marten observes, that and explains and elucidates what pre- 
 when two vessels, the enemies of eaofc paratory acts of warfare there ought, 
 other, meet in a neutral port, or where or ought not, to be tolerated ; and see 
 one pursues the other into such port, not 1 Chitty's Com. L. 441 to 444. So 
 only must they refrain from all hostili- we have seen that even a sentence 
 ties while they remain there, but should of condemnation of ship or goods as 
 one set sail, the other must not sail in prize cannot legally take place in a 
 less than twenty-four hours after. Mar- neutral country. Ante, and Flad Oyen, 
 ten's L. Nat b. viii. c. vi. s. 6. Sir W. 1 Rob. Rep. 115; 8 T. R. 270; Atche- 
 Scott, in the Twee Gcbroeders, 3 Rob. son's Rep. 8, note 9; and see Have- 
 Hep. 162336 ; and the Anna, 5 Rob. loch v. Rockwood, Atcheson's Rep. 33, 
 Rep. 373, observes, that no proximate 43. C. 
 acts of war are in any manner to be 
 452
 
 OF NEUTRALITY, ETC. 345 
 
 to observe the most exact discipline, and punctually pay for BOOK m. 
 everything with which the inhabitants supply them. And if CHAF - Tn v 
 the licentiousness of the soldiers, or the necessity of certain t ro P s P a8S - 
 operations, as encamping or intrenching, has caused an j ^neutral^ 
 damage, their commander or their sovereign is bound to make country . 
 reparation. All this requires no proof. What right have an 
 army to injure a country, when the most they could require 
 was an innocent passage through it ? 
 
 There can be no reason why the neutral state should not 
 stipulate for a sum of money, as an indemnification for certain 
 damages which it would be difficult to estimate, and for the 
 inconveniences naturally resulting from the passage of an 
 army. But it would be scandalous to sell the very grant of 
 passage, nay, even unjust, if the passage be attended with 
 no damage, since, in that case, the permission is due. As to 
 the rest, the sovereign of the country is to take care that the 
 compensation be paid to the parties who have suffered the 
 damage ; for no right authorizes him to reserve for his own 
 use what is given for their indemnification. It is, indeed, too 
 often the case, that the weak sustain the loss, and the power- 
 ful receive the compensation. 
 
 Finally, as we are not bound to grant even an innocent ? 135. A 
 passage, except for just causes, we may refuse it to him who P assa s e & y 
 requires it for a war that is evidently unjust, as, for instance, for 7 wa r 
 to invade a country without any reason, or even colourable evidently 
 pretext. Thus Julius Caesar denied a passage to the Helvetii, unjust, 
 who were quitting their country in order to conquer a better. 
 I conceive, indeed, that policy had a greater share in his re- 
 fusal than the love of justice ; but, in short, justice authorized 
 him on that occasion to obey the dictates of prudence. A 
 sovereign who is in a condition to refuse without fear, should 
 doubtless refuse in the case we now speak of. But if it would 
 be dangerous for him to give a refusal, he is not obliged to [ 346 ] 
 draw down the impending evil on his own head for the sake of 
 averting it from that of his neighbour : nay, rashly to hazard 
 the quiet and welfare of his people, would be a very great 
 breach of his duty. 
 
 453
 
 346 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK III. 
 CHAP. Till. 
 
 CHAP VIII. 
 
 OF THE RIGHTS OF NATIONS IN WAK, 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. (161) 
 
 f 136. Ge- WHAT we have hitherto said, concerns the right of making 
 norai prin- war : ] e t us now proceed to those rights which are to be re- 
 cipies of the g p ec t e d during the war itself, and to the rules -which nations 
 ajainst an should reciprocally observe, even when deciding their differ- 
 enemy in a cnces by arms. Let us begin by laying down the rights of a 
 just war. nation engaged in a just war : let us see what she is allowed 
 to do to her enemy. The whole is to be deduced from one 
 single principle, from the object of a just war : for, when 
 the end is lawful, he who has a right to pursue that end has, 
 of course, a right to employ all the means which are necessary 
 for its attainment. The end of a just war is to avenge or pre- 
 vent injury ( 28) that is to say, to obtain justice by force, 
 when not obtainable by any other method, to compel an un- 
 just adversary to repair an injury already done, or give us 
 securities against any wrong with which we are threatened by 
 him. As soon, therefore, as we have declared war, we have 
 a right to do against the enemy whatever we find necessary 
 for the attainment of that end, for the purpose of bring- 
 ing him to reason, and obtaining justice and security from 
 him. 
 
 $ 137. Dif- The lawfulness of the end does not give us a real right to 
 ference be- any thing further than barely the means necessary for the at- 
 w7ha h a at tainment of that end - Whatever we do beyond that, is repro- 
 right to do Da ^ed by the law of nature, is faulty, and condemnable at the 
 and what is tribunal of conscience. Hence it is that the right to such or 
 barely ai- such acts of hostility varies according to circumstances. What 
 
 lowed to be j s j us j. an( j p er f ec tly innocent in war, in one particular situa- 
 impunity ^ on > * s no * a l wa y s so on other occasions. Right goes hand 
 
 done with 
 
 between in hand with necessity and the exigency of the case, but never 
 
 enemies. exceeds them. 
 
 But as it is very difficult always to form a precise judgment 
 of what the present case requires, and as, moreover, it belongs 
 to each nation to judge of what her own particular situation 
 authorizes her to do (Prelim. 16) it becomes absolutely 
 necessary that nations should reciprocally conform to general 
 
 [ 347 ] rules on this subject. Accordingly, whenever it is certain 
 and evident that such a measure, such an act of hostility, is 
 necessary, in general, for overpowering the enemy's resist- 
 
 (161) See, in general, the Rights of Commercial Law, 377 to 437; and Chit- 
 War ; Grotius, ch. vi. ; and 1 Chitty's ty's Law of Nations, per tot. C. 
 454
 
 OF THE EIGHTS OF NATIONS IN WAK. 347 
 
 ance, and attaining the end of a lawful war, that measure, BOOK m. 
 thus viewed in a general light, is, by the law of nations, CHAP - Ym - 
 deemed lawful in war, and consistent with propriety, although 
 he who unnecessarily adopts it, when he might attain his end 
 by gentler methods, is not innocent before God and his own 
 conscience. In this lies the difference between what is just, 
 equitable, irreprehensible in war, and what is only allowed 
 between nations, and suffered to pass with impunity. The 
 sovereign who would preserve a pure conscience, and punctu- 
 ally discharge the duties of humanity, ought never to lose 
 sight of what we already have more than once observed, 
 that nature gives him no right to make war on his fellow-men, 
 except in cases of necessity, and as a remedy, ever disagree- 
 able, though often necessary, against obstinate injustice or 
 violence. If his mind is duly impressed with this great truth, 
 he will never extend the application of the remedy beyond its 
 due limits, and will be very careful not to render it more 
 harsh in its operation, and more fatal to mankind, than is 
 requisite for his own security and the defence of his rights. 
 
 Since the object of a just war is to repress injustice and g 138. The 
 violence, and forcibly to compel him who is deaf to the voice ri g ht to 
 of justice, we have a right to put in practice, against the ^^ en b an 
 enemy, every measure that is necessary in order to weaken everyjustifi- 
 him, and disable him from resisting us and supporting his able me- 
 injustice ; and we may choose such methods as are the most ^od. 
 efficacious and best culculated to attain the end in view, pro- 
 vided they be not of an odious kind, nor unjustifiable in them- 
 selves, and prohibited by the law of nature. 
 
 The enemy who attacks me unjustly, gives me an undoubted g 139. The 
 right to repel his violence; and he who takes up arms to ri g htover 
 oppose me when I demand only my right, becomes himself the enem J' 8 
 the real aggressor by his unjust resistance : he is the first per 
 author of the violence, and obliges me to employ forcible 
 means in order to secure myself against the wrong which he 
 intends to do me either in my person or my property. If the 
 forcible means I employ produce such effect as even to take 
 away his life, he alone must bear the whole blame of that 
 misfortune : for, if I were obliged to submit to the wrong 
 rather than hurt him, good men would soon become the prey 
 of the wicked. Such is the origin of the right to kill our 
 enemies in a just war. When we find gentler methods insuf- 
 ficient to conquer their resistance and bring them to terms, 
 we have a right to put them to death. Under the name of 
 enemies, as we have already shown, are to be comprehended, 
 not only the first author of the war, but likewise all those who 
 join him, and who fight in support of his cause. 
 
 But the very manner in which the right to kill our enemies \ HO. 
 is proved, points out the limits of that right. On an enemy's Li . mit f of 
 submitting and laying down his arms, we cannot with justice this right 
 take away his life. Thus, in a battle, quarter is to be given 
 
 455
 
 348 
 
 OF THE RIGHTS OF NATIONS IN WAR. 
 
 wi. A 
 particular 
 case, in 
 
 refused. 
 
 \ 142. 
 prisais. 
 
 to those who lay down their arms ; and, in a siege, a garrison 
 O flf er i n g t capitulate are never to be refused their lives. The 
 humanity with which most nations in Europe carry on their 
 
 , , i JJTI- 
 
 wars a * P resen ^ cannot be too much commended. If, some- 
 times, in the heat of action, the soldier refuses to give quarter, 
 it is always contrary to the inclination of the officers, who 
 eagerly interpose to save the* lives of such enemies as have 
 laid down their arms.* 
 
 There is, however, one case in which we may refuse to 
 spare the life of an enemy who surrenders, or to allow any 
 capitulation to a town reduced to the last extremity. It is, 
 wnen * na * enemy has been guilty of some enormous breach 
 of the law of nations, and particularly when he has violated 
 the laws of war. This refusal of quarter is no natural con- 
 sequence of the war, but a punishment for his crime, a pu- 
 nishment which the injured party has a right to inflict. But, 
 in order that it be justly inflicted, it must fall on the guilty. 
 When we are at war with a savage nation, who observe no 
 rules, and never give quarter, we may punish them in the 
 persons of any of their people whom we take, (these belonging 
 to the number of the guilty,) and endeavour, by this rigorous 
 proceeding, to force them to respect the laws of humanity. 
 But, wherever severity is not absolutely necessary, clemency 
 becomes a duty. Corinth was utterly destroyed for having 
 violated the law of nations in the person of the Roman am- 
 bassadors. That severity, however, was reprobated by Cicero 
 and other great men. He who has even the most just cause 
 to punish a sovereign with whom he is in enmity, will ever 
 incur the reproach of cruelty, if he causes the punishment to 
 fall on his innocent subjects. There are other methods of 
 chastising the sovereign, such as depriving him of some of 
 his rights, taking from him towns and provinces. The evil 
 which thence results to the nation at large, is the consequence 
 of that participation which cannot possibly be avoided by 
 those who unite in political society. 
 
 This leads us to speak of a kind of retaliation sometimes 
 practised in war, under the name of reprisals. If the hostile 
 general has, without any just reason, caused some prisoners 
 to be hanged, we hang an equal number of his people, and of 
 the same rank, notifying to him that we will continue thus 
 
 * From several passages of Grotius's 
 History of the Disturbances in the 
 Low Countries, it appears that the war 
 between the Dutch and Spaniards was 
 carried on with unrelenting cruelty at 
 sea, although the parties had agreed to 
 observe the usual rules of moderation 
 on land. Intelligence being received 
 by the confederate states, that the Spa- 
 niards had, by the advice of Spinola, 
 embarked at Lisbon a body of troops 
 
 destined for Flanders, they despatched 
 a squadron to wait for them in the 
 strait of Calais, with orders to drown 
 without mercy every soldier that was 
 taken; and the order was punctually 
 executed. Book xiv. p. 550. Edit. A.D. 
 3797. 
 
 (162) As to reprisals and letters of 
 marque in general, see ante, b. ii. ch. 
 xviii. 334. C. 

 
 OF THE EIGHTS OF NATIONS IN WAR. 483 
 
 to retaliate, for the purpose of obliging him to observe the BOOK m. 
 laws of war. It is a dreadful extremity thus to condemn a , CHAP - YI ?-. 
 prisoner to atone, by a miserable death, for his general's 
 crime : and if we had previously promised to spare the life 
 of that prisoner, we cannot, without injustice, make him the [ 349 ] 
 subject of our reprisals.* Nevertheless, as a prince, or his 
 general, has a right to sacrifice his enemy's lives to his own 
 safety and that of his men, it appears, that, if he has to do 
 with an inhuman enemy, who frequently commits such enor- 
 mities, he is authorized to refuse quarter to some of the pri- 
 soners he takes, and to treat them as his people have been 
 treated.f But Scipio's generosity is rather to be imitated : 
 that great man, having reduced some Spanish princes, who 
 had revolted against the Romans, declared to them that, on a 
 breach of their faith, he would not call the innocent hostages 
 to an account, but themselves : and that he would not avenge 
 it on an unarmed enemy, but on those who should be found 
 in arms.! Alexander the Great, having cause of complaint 
 against Darius for some malpractices, sent him word, that if 
 he continued to make war in such a manner, he would proceed 
 to every extremity against him, and give him no quarter. It 
 is thus an enemy who violates the laws of war is to be checked, 
 and not by causing the penalty due to his crime to fall on 
 innocent victims. 
 
 How could it be conceived, in an enlightened age, that it is 143. Whe- 
 lawful to punish with death a governor who has defended his ther a go ~ 
 town to the last extremity, or who, in a weak place, has had t^ ^ 
 the courage to hold out against a royal army ? In the last be punished 
 century, this notion still prevailed ; it was looked upon as one with death 
 of the laws of war, and is not, even at present, totally exploded. fo f an k- 
 What an idea ! to punish a brave man for having performed f*^ 
 his duty ! Very different were the principles of Alexander 
 the Great, when he gave orders for sparing some Milesians, 
 on account of their courage and fidelity. \\ "As Phyton was 
 led to execution, by order of Dionysius the tyrant, for having 
 obstinately defended the town of Rhegium, of which he was 
 governor, he cried out, that he was unjustly condemned to die 
 for having refused to betray the town, and that heaven would 
 
 * In the French, we here find (ap- prisoner, in case of victory declaring on 
 
 parently very much out of place) a ver- their side. He spared Adeimantus alone, 
 
 batim repetition of the long note which who had opposed that infamous reso- 
 
 has already appeared in page 286. lution. Xenoph. Hist. Graec. lib. ii. cap. 
 
 Edit. A. D. 1797. i. Edit A. D. 1797. 
 
 f Lysander, having captured the J Neque se in obsides innoxios, sed 
 
 Athenian fleet, put the prisoners to in ipsos, si defecerint, saeviturum ; nee 
 
 death, on account of various cruelties ab inermi, sed ab armato hoste, poenas 
 
 practised by the Athenians during the expetiturum. Tit. Liv. lib. xxviii. 
 
 course of the war, but principally on \ Quint Curt. lib. iv. cap. i. and ii. 
 
 account of the barbarous resolution || Arrian. de Exped. Alexand. lib. L 
 
 which they were known to have adopt- cap. xx. 
 ed, of cutting off the right hand of every 
 
 53 20 457
 
 349 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK in. soon avenge his death." Diodorus Siculus terms this " an 
 CHAP. YIII. un j ust punishment."* It is vain to object, that an ohstinate 
 defence, especially in a weak place, against a royal army, only 
 causes a fruitless effusion of blood. Such a defence may save 
 the state, by delaying the enemy some days longer ; and, be- 
 sides, courage supplies the defects of the fortifications. f The 
 [ 350 ] chevalier Bayard having thrown himself into Mezieres, de- 
 fended it with his usual intrepidity,! and proved that a brave 
 man is sometimes capable of saving a place which another 
 would not think tenable. The history of the famous siege of 
 Malta is another instance how far men of spirit may defend 
 themselves, when thoroughly determined. How many places 
 have surrendered, which might still have arrested the enemy's 
 progress for a considerable time, obliged him to consume his 
 strength and waste the remainder of the campaign, and even 
 finally saved themselves, by a better-supported and more vigor- 
 ous defence ! In the last war, whilst the strongest places 
 in the Netherlands opened their gates in a few days, the va- 
 liant general Leutrum was seen to defend Coni against the 
 utmost efforts of two powerful armies, to hold out, in so in- 
 different a post, forty days from the opening of the trenches, 
 and, finally, to save the town, and, together with it, all 
 Piemont. If it be urged, that, by threatening a commandant 
 with death, you may shorten a bloody siege, spare your troops, 
 and make a valuable saving of time, my answer is, that a 
 brave man will despise your menace, or, incensed by such ig- 
 nominious treatment, will sell his life as dearly as he can, 
 will bury himself under the ruins of his fort, and make you 
 pay for your injustice. But, whatever advantage you might 
 promise yourself from an unlawful proceeding, that will not 
 warrant you in the use of it. The menace of an unjust pun- 
 ishment is unjust in itself: it is an insult and an injury. But, 
 above all, it would be horrible and barbarous to put it in execu- 
 tion ; and, if you allow that the threatened consequences must 
 not be realized, the threat is vain and ridiculous. Just and 
 
 * Lib. xiv. cap. cxiii., quoted by Gro- ill-fortified place against a royal army, 
 
 tins, lib. iii. cap. ii. g xvi. n. v. and when, refusing to accept of reason- 
 
 j- The false maxim which formerly able conditions offered to them, they 
 
 prevailed on this subject, is noticed in undertake to arrest the progress of a 
 
 the relation of the battle of Mussel- power which they are unable to resist." 
 
 burgh (De Thou, vol. i. p. 287). " The Pursuant to that maxim, Caesar an- 
 
 general (the duke of Somerset), the re- swered the Aduatici that he would 
 
 gent of England, was on this occasion spare their town, if they surrendered 
 
 much admired for his clemency, which before the battering-ram touched their 
 
 induced him to spare the lives of the walls ; and the duke of Alva strongly 
 
 besieged (the garrison of a castle in blamed prosper Colonna for having 
 
 Scotland,) notwithstanding that ancient granted terms of capitulation to the 
 
 maxim in war, which declares that a garrison of a castle, who had refused 
 
 weak garrison forfeit all claim to mercy to treat of a surrender until the cannon 
 
 on the part of the conqueror, when, had been employed against them. Edit, 
 
 with more courage than prudence, they A. D. 1797. 
 obstinately persevere in defending an { See his life.
 
 OF THE RIGHTS OP NATIONS IN WAR. 350 
 
 honourable means may be employed to dissuade a governor BOOK m. 
 from ineffectually persevering to the last extremity ; and such CHAP, ym. 
 is the present practice of all prudent and humane generals. 
 At a proper stage of the business, they summon a governor to 
 surrender ; they offer him honourable and advantageous terms 
 of capitulation, accompanied by a threat, that, if he delays 
 too long, he will only be admitted to surrender as a prisoner 
 of war, and at discretion. If he persists, and is at length [ 351 ] 
 forced to surrender at discretion, they may then treat both 
 himself and his troops with all the severity of the law of war. 
 But that law can never extend so far as to give a right to take 
 away the life of an enemy who lays down his arms ( 140), 
 unless he has been guilty of some crime against the con- , 
 queror ( 141). 
 
 Resistance carried to extremity does not become punishable 
 in a subaltern, except on those occasions only when it is evi- 
 dently fruitless. It is then obstinacy, and not firmness or 
 valour : true valour has always a reasonable object in view. 
 Let us, for, instance, suppose that a state has entirely sub- 
 mitted to the conqueror's arms, except one single fortress, 
 that no succour is to be expected from without, no neighbour, 
 no ally, concerns himself about saving the remainder of that 
 conquered state : on such an occasion, the governor is to be 
 made acquainted with the situation of affairs, and summoned 
 to surrender ; and he may be threatened with death in case 
 of his persisting in a defence which is absolutely fruitless, and 
 which can only tend to the effusion of human blood.* Should 
 this make no impression on him, he deserves to suffer the pu- 
 nishment with which he has been justly threatened. I suppose 
 the justice of the war to be problematical, and that it is not an 
 insupportable oppression which he opposes : for if this gover- 
 nor maintains a cause that is evidently just r if he fights to 
 save his country from slavery, his misfortune will be pitied ; 
 and every man of spirit will applaud him for gallantly perse- 
 vering to the last extremity, and determining to die free. 
 
 Fugitives and deserters, found by the victor among his ene- % 144. Fn- 
 mies, are guilty of a crime against him ; and he has undoubt- gitives and 
 edly a right to put them to death. But they are not properly desertors - 
 considered as enemies: they are rather perfidious citizens 
 
 * But it is not lawful to employ in Louis's hands) should be put to 
 
 menaces of every kind in order to in- death in his sight. Philip replied that 
 
 duee the governor or commandant of a he would feel the most poignant regret 
 
 town to surrender. There are some, to lose his father, but that his honour 
 
 against which nature revolts with hor- was still dearer to him, and that ho 
 
 ror. Louis the Eleventh, being en- was too well acquainted with the 
 
 gaged in the siege of St. Omer, and king's disposition, to apprehend that 
 
 incensed at the long resistance he ex- he would disgrace himself by the per- 
 
 perienced, informed the governor, Phi- petration of so barbarous a deed. 
 
 lip, son of Antony, the Bastard of Bur- Hist, of Louis XL book viii. Edit, 
 
 gundy, that if he did not surrender the A.D. 1797. 
 place, his father (who was a prisoner 
 
 459
 
 351 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK in. traitors to their country ; and their enlistment with the enemy 
 CHAP. Tin. cannot obliterate that character, or exempt them from the 
 punishment they have deserved. At present, however, deser- 
 tion being unhappily too common, the number of the delin- 
 quents renders it in some measure necessary to show clemency ; 
 and, in capitulations, it is usual to indulge the evacuating 
 garrison with a certain nuritber of covered wagons, in which 
 they save the deserters. 
 
 \ 145. Wo- Women, children, feeble old men, and sick persons, come 
 men, chil- un der the description of enemies ( 70 72) ; and we have 
 ^ed' and cei> t a in rights over them, inasmuch as they belong to the 
 sfck.' ^ nation with whom we are at war, and as, between nation and 
 [ 352 ] nation, all rights and pretensions affect the body of the society, 
 together with all its members (Book II. 81, 82344). But 
 these are enemies who make no resistance ; and consequently 
 we have no right to maltreat their persons or use any violence 
 against them, much less to take away their lives ( 140). This 
 is so plain a maxim of justice and humanity, that at present 
 every nation in the least degree civilized, acquiesces in it. 
 If, sometimes, the furious and ungovernable soldier carries his 
 brutality so far as to violate female chastity, or to massacre 
 women, children, and old men, the officers lament those ex- 
 cesses ; they exert their utmost efforts to put a stop to them ; 
 and a prudent and humane general even punishes them when- 
 ever he can. But, if the women wish to be spared altogether, 
 they must confine themselves to the occupations peculiar to 
 their own sex, and not meddle with those of men, by taking 
 up arms. Accordingly, the military law of the Switzers, which 
 forbids the soldier to maltreat women, formally excepts those 
 females who have committed any acts of hostility.* 
 g 146. cier- The like may be said of the public ministers of religion, of 
 gy, men of men of letters, and other persons whose mode of life is very 
 letters, Ac. remo t e from military affairs : not that these people, nor even 
 the ministers of the altar, are, necessarily, and by virtue of 
 their functions, invested with any character of inviolability, 
 or that the civil law can confer it on them with respect to the 
 enemy : but, as they do not use force or violence to oppose 
 him, they do not give him a right to use it against them. 
 Among the ancient Romans, the priests carried arms : Julius 
 Caesar himself was sovereign pontiff: and among the Chris- 
 tians, it has been no rare thing to see prelates, bishops, and 
 cardinals buckle on their armor, and take the command of 
 armies. From the instant of their doing so, they subjected 
 themselves to the common fate of military men. While deal- 
 ing out their blows in the field of battle, they did not, it is to 
 be presumed, lay claim to inviolability. 
 
 g 147. Pea- Formerly, every one capable of carrying arms became a 
 ants, and, so ldier when his nation was at war, and especially when it 
 
 * See Simler, de Repub. Helvet. 
 460
 
 OF THE EIGHTS OF NATIONS IN WAR. 352 
 
 was attacked. Grotius, however,* produces instances of BOOK m. 
 several nations and eminent commanders, f who spared the CHAP ' ^~ 
 peasantry, in consideration of the immediate usefulness of in general, 
 their labours.^ At present, war is carried on by regular a11 who do 
 troops : the people, the peasants, the citizens, take no part ] ^g arry 
 in it, and generally have nothing to fear from the sword of a " 
 the enemy. Provided the inhabitants submit to him who is 
 master of the country, pay the contributions imposed, and [ 353 ] 
 refrain from all hostilities, they live in as perfect safety as if 
 they were friends : they even continue in possession of what 
 belongs to them : the country people come freely to the camp 
 to sell their provisions, and are protected, as far as possible, 
 from the calamities of war. A laudable custom, truly worthy 
 of those nations who value themselves on their humanity, 
 and advantageous even to the enemy who acts with such 
 moderation. By protecting the unarmed inhabitants, keeping 
 the soldiery under strict discipline, and preserving the coun- 
 try, a general procures an easy subsistence for his army, and 
 avoids many evils and dangers. If he has any reason to mis- 
 trust the peasantry and the inhabitants of the towns, he has 
 a right to disarm them, and to require hostages from them : 
 and those who wish to avoid the calamities of war, must sub- 
 mit to the laws which the enemy thinks proper to impose on 
 them. 
 
 But all those enemies thus subdued or disarmed, whom the ? 148. The 
 principles of humanity oblige him to spare, all those persons ri s h * ' 
 belonging to the opposite party, (even the women and chil- n e ^ s f "" 
 dren,) he may lawfully secure and make prisoners, either with war . 
 a view to prevent them from taking up arms again, or for the 
 purpose of weakening the enemy ( 138), or, finally, in hopes 
 that, by getting into his power some woman or child for whom 
 the sovereign has an affection, he may induce him to accede 
 to equitable conditions of peace, for the sake of redeeming 
 those valuable pledges. At present, indeed, this last-men- 
 tioned expedient is seldom put in practice by the polished 
 nations of Europe : women and children are suffered to enjoy 
 perfect security, and allowed permission to withdraw wherever 
 they please. But this moderation, this politeness, though 
 undoubtedly commendable, is not in itself absolutely obliga- 
 tory ; and if a general thinks fit to supersede it, he cannot be 
 justly accused of violating the laws of war. He is at liberty 
 to adopt such measures, in this respect, as he thinks most 
 conducive to the success of his affairs. If without reason, 
 and from mere caprice, he refuses to indulge women with this 
 liberty, he will be taxed with harshness and brutality, he 
 
 * Book iii. ch. xi. g xi. and make war only against those who 
 
 T Cyrus, Belisarius, &c. appeared in arms : and the proposal 
 
 f Cyrus proposed to the king of As- was agreed to. Xenoph. Cyrop. lib. v. 
 
 Syria, that both parties should recipro- cap. 4. 
 
 cally spare the cultivators of the soil, 
 
 2 o 2 461
 
 353 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK in. will be censured for not conforming to a custom established 
 CHAP. Tin. ky humanity : but he may have good reasons for disregarding, 
 in this particular, the rules of politeness, and even the sug- 
 gestions of pity. If there are hopes of reducing by famine a 
 strong place, of which it is very important to gain possession, 
 the useless mouths are not permitted to come out. And in 
 this there is nothing which is not authorized by the laws of 
 war. Some great men, however, have, on occasions of this 
 nature, carried their compassion so far as to postpone their 
 interests to the motions of humanity. We have already men- 
 tioned, in another place, how Henry the Great acted during 
 the siege of Paris. To such a noble example let us add that 
 of Titus at the siege of Jerusalem : at first he was inclined to 
 drive back into the city great numbers of starving wretches, 
 [ 354 ] wno came out of it ; but he could not withstand the compas- 
 sion which such a sight raised in him ; and he suffered the 
 sentiments of humanity and generosity to prevail over the 
 maxims of war. . 
 
 g 149. A As soon as your enemy has laid down his arms and sur- 
 prisoner of rendered his person, you have no longer any right over his 
 be^oTto* life (140), unless he should give you such right by some 
 death. new attempt, or had before committed against you a crime 
 deserving death ( 141). It was therefore a dreadful error 
 of antiquity, a most unjust and savage claim, to assume a 
 right of putting prisoners of war to death, and even by the 
 hand of the executioner. More just and humane principles, 
 however, have long since been adopted. Charles I., king of 
 Naples, having defeated and taken prisoner Conradin, his 
 competitor, caused him to be publicly beheaded at Naples, 
 together with Frederic of Austria, his fellow-prisoner. This 
 barbarity raised a universal horror ; and Peter III., king of 
 Arragon, reproached Charles with it as a detestable crime, 
 and till then unheard of among Christian princes.* The 
 case, however, was that of a dangerous rival, who contended 
 with him for the throne. But supposing even the claims of that 
 rival were unjust, Charles might have kept him in prison till 
 he had renounced them, and given security for his future 
 behaviour. 
 
 \ 150. How Prisoners may be secured ; and for this purpose they may 
 prisoners of k e p u ^ j n t confinement, and even fettered, if there be reason 
 to a PP r ehend that they will rise on their captors, or make 
 their escape. But they are not to be treated harshly, unless 
 personally guilty of some crime against him who has them in 
 his power. In this case, he is at liberty to punish them : 
 otherwise, he should remember that they are men, and unfor- 
 tunate, f A man of exalted soul no longer feels any emotions 
 
 * Epist Pet. Arrag. apud Petr. de therlands, at the persuasion of the 
 
 Vineis. count de Fuentes, resolved no longer 
 
 f In 1593, the council of the Ne- to observe towards the United Pro- 
 462
 
 OF THE RIGHTS OF NATIONS IN WAR. 354 
 
 but those of compassion towards a conquered enemy who has BOOK HI. 
 submitted to his arms. Let us, in this particular, bestow on , CHAP - YI _"' 
 the European nations the praise to which they are justly 
 entitled. Prisoners of war are seldom ill-treated among 
 them. We extol the English and French ; we feel our bosoms 
 glow with love for them, when we hear the accounts of the 
 treatment which prisoners of war, on both sides, have experi- 
 enced from those generous nations. And what is more, by a 
 custom which equally displays the honour and humanity of 
 the Europeans, an officer, taken prisoner in war, is released 
 on his parole, and enjoys the comfort of passing the time of [ 355 ] 
 his captivity in his own country, in the midst of his family ; 
 and the party who have thus released him rest as perfectly 
 sure of him as if they had him confined in irons. 
 
 Formerly, a question of an embarrassing nature might have g 151. Who. 
 been proposed. When we have so great a number of pri- ther P rison - 
 soners that we find it impossible to feed them, or to keep them ^ n *t be 
 with safety, have we a right to put them to death ? or shall we kept or fed, 
 send them back to the enemy, thus increasing his strength, may be put 
 and exposing ourselves to the hazard of being overpowered to death - 
 by him on a subsequent occasion? At present, the case is 
 attended with no difficulty. Such prisoners are dismissed on 
 their parole, bound by promise not to carry arms for a cer- 
 tain time, or during the continuance of the war. And as every 
 commander necessarily has a power of agreeing to the condi- 
 tions on which the enemy admits his surrender, the engage- 
 ments entered into by him for saving his life or his liberty, 
 with that of his men, are valid, as being made within the 
 limits of his powers ( 19, &c.); and his sovereign cannot 
 annul them. Of this, many instances occurred during the 
 last war : several Dutch garrisons submitted to the condition 
 of not serving against France or her allies for one or two 
 years: a body of French troops being invested in Lintz, 
 were by capitulation sent back across the Rhine, under a 
 restriction not to carry arms against the queen of Hungary 
 for a stated time : and the sovereigns of those troops re- 
 spected the engagements formed by them. But conventions 
 of this kind have their limits, which consist in not infringing 
 the rights of the sovereign over his subjects. Thus the 
 enemy, in releasing prisoners, may impose on them the con- 
 vinces that moderation which humanity hands, obliged the Spaniards to re-es- 
 rcnders so necessary in war. They tablish those indispensable usages, 
 gave orders for putting to death every which, in the words of Virgil [JEn. x. 
 man who should be made prisoner, 532], are called belli eomiercia, the 
 and, under the same penalty, prohi- ransom or exchange of prisoners, and 
 bited the payment of any contributions the payment of contributions to avert 
 to the enemy. But the complaints of pillage and devastation. The ransom 
 the nobility and clergy, and still more of each prisoner was then settled at a 
 the murmurs of the military, who saw month's pay. Grotius, Hist, of Ne- 
 themsclves exposed to an infamous therlands, book iii. 
 death in case of falling into the enemy's 
 
 463
 
 355 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK in. dition of not carrying arms against him till the conclusion of 
 - HAP- YII _ the war ; since he might justly keep them in confinement till 
 that period : but he cannot require that they shall for ever 
 renounce the liberty of fighting for their country ; because, 
 on the termination of the war, he has no longer any reason 
 for detaining them ; and they, on their part, cannot enter 
 into an engagement absolutely inconsistent with their cha- 
 racter of citizens or subjects. If their country abandons 
 them, they become free in that respect, and have in their 
 turn a right to renounce their country. 
 
 But if we have to do with a nation that is at once savage, 
 perfidious, and formidable, shall we send her back a number 
 of soldiers who will perhaps enable her to destroy us ? When 
 our own safety is incompatible with that of an enemy even 
 of an enemy who has submitted the question admits not of 
 a doubt. But to justify us in coolly and deliberately putting 
 to death a great number of prisoners, the following conditions 
 are indispensably necessary : 1. That no promise have been 
 made to spare their lives ; and, 2. That we be perfectly assured 
 that our own safety demands such a sacrifice. If it is at all 
 consistent with prudence either to trust to their parole, or to 
 disregard their perfidy, a generous enemy will rather listen 
 to the voice of humanity than to that of a timid circumspec- 
 [ 356 ] tion. Charles XII., being encumbered with his prisoners 
 after the battle of Narva, only disarmed them and set them 
 at liberty : but his enemy, still impressed with the apprehen- 
 sions which his warlike and formidable opponents had excited 
 in his mind, sent into Siberia all the prisoners he took at 
 Pultowa. The Swedish hero confided too much in his own 
 generosity : the sagacious monarch of Russia united, perhaps, 
 too great a degree of severity with his prudence : but neces- 
 sity furnishes an apology for severity, or rather throws a veil 
 over it altogether. When Admiral Anson took the rich Aca- 
 pulco galleon, near Manilla, he found that the prisoners out- 
 numbered his whole ship's company: he was therefore under 
 a necessity of confining them in the hold, where they suffered 
 cruel distress.* But had he exposed himself to the risk of 
 being carried away a prisoner, with his prize and his own ship 
 together, would the humanity of his conduct have justified 
 the imprudence of it ? Henry V., king of England, after his 
 victory in the battle of Agincourt, was reduced, or thought 
 himself reduced, to the cruel necessity of sacrificing the pri- 
 soners to his own safety. "In this universal rout," says 
 Father Daniel, " a fresh misfortune happened, which cost the 
 lives of a great number of French. A remainder of their van 
 was retreating in some order, and many of the stragglers 
 rallied and joined it. The king of England, observing their 
 
 See Anaon's Voyage round the World. {P. 382, 383. Lond. Ed. 4to. 
 1756.}
 
 OF THE RIGHTS OF NATIONS IN WAR. 356 
 
 motions from an eminence, supposed it was their intention to BOOK m. 
 return to the charge. At the same moment, he received in- CHAP> Tm : 
 formation of an attack being made on his camp, where the 
 baggage was deposited. In fact, some noblemen of Picardy, 
 having armed about six hundred peasants, had fallen upon 
 the English camp. Thus circumstanced, that prince, appre- 
 hensive of some disastrous reverse, despatched his aides-de- 
 camp to the different divisions of the army, with orders for 
 putting all the prisoners to the sword, lest, in case of a re- 
 newal of the battle, the care of guarding them should prove 
 an impediment to his soldiers, or the prisoners should escape 
 and join their countrymen. The order was immediately car- 
 ried into execution, and all the prisoners were put to the 
 sword."* Nothing short of the greatest necessity can justify 
 so terrible an execution ; and the general whose situation 
 requires it, is greatly to be pitied. 
 
 Is it lawful to condemn prisoners of war to slavery ? Yes, 152. Whe- 
 in cases which give a right to kill them, when they have ther P ris n - 
 rendered themselves personally guilty of some crime deserv-^ ^" 
 ing of death. The ancients used to sell their prisoners of made slave*, 
 war for slaves. They, indeed, thought they had a right to 
 put them to death. In every circumstance, when I cannot 
 innocently take away my prisoner's life, I have no right to 
 make him a slave. If I spare his life, and condemn him to [ 357 ] 
 a state so contrary to the nature of man, I still continue with 
 him the state of war. He lies under no obligation to me: 
 for, what is life without freedom ? If any one counts life a 
 favour when the grant of it is attended with chains, be it 
 so : let him accept the kindness, submit to the destiny which 
 awaits him, and fulfil the duties annexed to it. But he must 
 apply to some other writer to teach him those duties : there 
 have been authors enough who have amply treated of them. 
 I shall dwell no longer on the subject ; and, indeed, that dis- 
 grace to humanity is happily banished from Europe. 
 
 Prisoners of war, then, are detained, either to prevent their g 153. Ex- 
 returning to join the enemy again, or with a view to obtain ch ange and 
 from their sovereign a just satisfaction, as the price of their ra ? som of 
 liberty. There is no obligation to release those who are de- pn 
 tained with the latter view, till after satisfaction is obtained. 
 As to the former, whoever makes a just war has a right, if he 
 thinks proper, to detain his prisoners till the end of the war : 
 and whenever he releases them, he may justly require a ran- 
 som, either as a compensation at the conclusion of a peace, 
 or, if during the continuance of the war, for the purpose of 
 at least weakening his enemy's finances at the same time that 
 he restores him a number of soldiers. The European nations, 
 who are ever to be commended for their care in alleviating the 
 
 * Hist, of France, Reign of Charles VL 
 59 465
 
 357 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK in. evils of war, have, with regard to prisoners, introduced humane 
 CHAP. Tin. an( j gajutary customs. They are exchanged or ransomed, even 
 during the war : and this point is generally settled beforehand 
 by cartel. However, if a nation finds a considerable advan- 
 tage in leaving her soldiers prisoners with the enemy during 
 the war rather than exchanging them, she may certainly, 
 unless bound by cartel, act in that respect as is most conducive 
 to her interest. Such would be the case of a state abound- 
 ing in men, and at war with a nation more formidable by the 
 courage than the number of her soldiers. It would have ill 
 suited the interests of the czar, Peter the Great, to restore 
 his prisoners to the Swedes for an equal number of Russians. 
 154. The But the state is bound to procure, at her own expense, the 
 state is release of her citizens and soldiers who are prisoners of war, 
 rocure as soon as s ^ e ^ as *^ e means f accomplishing it, and can do 
 their re- it without danger. It was only by acting in her service and 
 lease. supporting her cause that they were involved in their present 
 misfortune. For the same reason, it is her duty to provide 
 for their support during the time of their captivity. For- 
 merly, prisoners of war were obliged to redeem themselves : 
 but then the ransom of all those whom the officers or soldiers 
 might take, was the perquisite of the individual captors. The 
 modern custom is more agreeable to reason and justice. If 
 prisoners cannot be delivered during the course of the war, 
 at least their liberty must, if possible, make an article in the 
 treaty of peace. This is a care which the state owes to those 
 who have exposed themselves in her defence. It must, ne- 
 vertheless, be allowed, that a nation may, after the example 
 of the Romans, and for the purpose of stimulating her soldiers 
 to the most vigorous resistance, enact a law to prohibit pri- 
 [ 358 ] soners of war from ever being ransomed. When this is agreed 
 to by the whole society, nobody can complain. But such a 
 law is very severe, and could scarce suit any but those am- 
 bitious heroes who were determined on sacrificing every thing 
 in order to make themselves masters of the world, 
 g 155. Who- Since the present chapter treats of the rights which war 
 ther an ene- gives us over the person of the enemy, this is the proper 
 my may place to discuss a celebrated question, on which authors have 
 wTaSate'd ^ een muc h divided, and that is, whether we may lawfully 
 r poisoned, employ all sorts of means to take away an enemy's life ? 
 whether we be justifiable in procuring his death by assassina- 
 tion or poison ? Some writers have asserted, that, where we 
 have a right to take away life, the manner is indifferent. A 
 strange maxim ! but happily exploded by the bare ideas of 
 honour, confused and indefinite as they are. In civil society, 
 I have a right to punish a slanderer, to cause my property 
 to be restored by him who unjustly detains it : but shall the 
 manner be indifferent ? Nations may do themselves justice 
 sword in hand, when otherwise refused to them : shall it be 
 indifferent to human society that they employ odious means, 
 
 400
 
 OF THE RIGHTS OF NATIONS IN WAR. 358 
 
 capable of spreading desolation over the whole face of the BOOK m. 
 earth, and against which the most just and equitable of sove- CHAP - YIU - 
 reigns, even though supported by the majority of other 
 princes, cannot guard himself? 
 
 But, in order to discuss this question on solid grounds, as- 
 sassination is by all means to be distinguished from surprises, 
 which are, doubtless, very allowable in war. Should a re- 
 solute soldier steal into the enemy's camp by night, should 
 he penetrate to the general's tent, and stab him, in such 
 conduct there is nothing contrary to the natural laws of war, 
 nothing even but what is perfectly commendable in a just 
 and necessary war. Mutius Scaevola has been praised by all 
 the great men of antiquity ; and Porsenna himself, whom he 
 intended to kill, could not but commend his courage.* Pepin, 
 father of Charlemagne, having crossed the Rhine with one of 
 his guards, went and killed his enemy in his chamber, f If 
 any one has absolutely condemned such bold strokes, his cen- 
 sure only proceeded from a desire to flatter those among the 
 great, who would wish to leave all the dangerous part of war 
 to the soldiery and inferior officers. It is true, indeed, that 
 the agents in such attempts are usually punished with some 
 painful death. But that is, because the prince or general who 
 is thus attacked exercises his own rights in turn, has an eye 
 to his own safety, and endeavours, by the dread of a cruel 
 punishment, to deter his enemies from attacking him other- 
 wise than by open force. He may proportion his severity 
 towards an enemy according as his own safety requires. In- 
 deed, it would be more commendable on both sides to renounce 
 every kind of hostility which lays the enemy under a neces- r 3f/J 1 
 sity of employing cruel punishments, in order to secure him- 
 self against it. This might be made an established custom, 
 a conventional law of war. The generous warriors of the 
 present age dislike such attempts, and would never willingly 
 undertake them, except on those extraordinary occasions, 
 when they become necessary to the very safety and being of 
 their country. As to the six hundred Lacedaemonians, who, 
 under the conduct of Leonidas, broke into the enemy's camp, 
 and made their way directly to the Persian monarch's tent,| 
 their expedition was justifiable by the common rules of war, 
 and did not authorize the king to treat them more rigorously 
 than any other enemies. In order to defeat all such attempts, 
 it is sufficient to keep a strict watch ; and it would be unjust 
 to have recourse to cruel punishments for that purpose : ac- 
 cordingly, such punishments are reserved for those only who 
 gain admittance by stealth alone, or in very small number, 
 and especially if under cover of a disguise. 
 
 * See Livy, lib. ii. cap. xii. Cicero, f Grotius, lib. iii. cap. 4, g xviii. n. L 
 pro P. Sextio. Valer. Max. lib. iii. cap. j Justin, lib. ii. cap. xi. 
 iii. Plutarch, in Poplicol. 
 
 467
 
 359 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK m. I give, then, the name of assassination to a treacherous 
 CHAP. Tin. mur( j er) -whether the perpetrators of the deed be subjects of 
 the party whom we cause to be assassinated, or of our own 
 sovereign, or that it be executed by the hand of any other 
 emissary, introducing himself as a supplicant, a refugee, a 
 deserter, or, in fine, as a stranger ; and such an attempt, I 
 say, is infamous and execrable, 'both in him who executes and 
 in him who commands it. Why do we judge an act to be 
 criminal, and contrary to the law of nature, but because such 
 act is pernicious to human society, and that the practice of it 
 would be destructive to mankind ? Now, what could be more 
 terrible than the custom of hiring a traitor to assassinate our 
 enemy? Besides, were such a liberty once introduced, the 
 purest virtue, the friendship of the majority of the reigning 
 sovereigns, would no longer be sufficient to insure a prince's 
 safety. Had Titus lived in the time of the old man of the 
 mountain, though the happiness of mankind centred in him, 
 though punctual in the observance of peace and equity, he 
 was respected and adored by all potentates, yet, the very 
 first time that the prince of the Assassins might have thought 
 proper to quarrel with him, that universal aifection would have 
 proved insufficient to save him ; and mankind would have lost 
 their "darling." Let it not here be replied, that it is only 
 in favour of the cause of justice that such extraordinary 
 measures are allowable : for all parties, in their wars, main- 
 tain that they have justice on their side. Whoever, by setting 
 the example, contributes to the introduction of so destructive 
 a practice, declares himself the enemy of mankind, and de- 
 serves the execration of all ages.* The assassination of 
 [ 360 ] William, prince of Orange, was regarded with universal detest- 
 ation, though the Spaniards had declared that prince a rebel. 
 And the same nation denied, as an atrocious calumny, the 
 charge of having had the least concern in that of Henry the 
 Great, who was preparing for a war against them, which might 
 have shaken their monarchy to its very foundations. 
 
 In treacherously administering poison there is something 
 
 * See the dialogue between Julius on the traitor's own head," he ordered 
 
 Caesar and Cicero, in the Melanges de him to bo despatched with the same 
 
 Litte'rature et Po6sies. Farrudge, sul- poniard with which he had intended to 
 
 tan of Egypt, sent to Timur-bec an perpetrate the abominable deed. The 
 
 ambassador, accompanied by two vil- body of the traitor was then committed 
 
 lains, who were to assassinate that to the flames, as an example to others, 
 
 conqueror during the audience. This The two assassins were only condemned 
 
 infamous plot being discovered, " It is to suffer the amputation of their noses 
 
 not," said Timur, " the maxim of kings and ears ; Timur contenting himself 
 
 to put ambassadors to death : but as to with this punishment, and forbearing 
 
 this wretch, who, under the sacred garb to put them to death, because he wished 
 
 of religion, is a monster of perfidy and to send them back with a letter to the 
 
 corruption, it would be a crime to suffer sultan. {Petis de la Croix.} Hist, of 
 
 him and his accomplices to live." Pur- Timur-bec, book v. chap. xxiv. {p. 313. 
 
 suant, therefore, to that passage of the Ed. Delf. 1723.} 
 Koran which says that "treachery falls
 
 OF THE RIGHTS OF NATIONS IN WAR. 360 
 
 still more odious than in assassination : it would be more BOOK m. 
 difficult to guard against the consequences of such an attempt ; CHAP - Tm - 
 and the practice would be more dreadful ; accordingly, it has 
 been more generally detested. Of this Grotius has ac- 
 cumulated many instances.* The consuls Caius Fabricius 
 and Quintus ^Emilius rejected with horror the proposal of 
 Pyrrhus's physician, who made an offer of poisoning his 
 master ; they even cautioned that prince to be on his guard 
 against the traitor, haughtily adding : " It is not to ingra- 
 tiate ourselves with you that we give this information, but to 
 avoid the obloquy to which your death would expose us."f 
 And they justly observe, in the same letter, that it is for the 
 common interest of all nations not to set such examples.^ 
 It was a maxim of the Roman Senate, that war was to be 
 carried on with arms, and not with poison. Even under 
 Tiberius, the proposal of the prince of the Catti was rejected, 
 who offered to destroy Arminius, if poison were sent him for 
 that purpose: and he received for answer, that "it was the 
 practice of the Romans to take vengeance on their enemies by 
 open force, and not by treachery and secret machinations ;"|| 
 Tiberius thus making it his glory to imitate the virtue of the 
 ancient Roman commanders. This instance is the more re- 
 markable, as Arminius had treacherously cut off Varus, to- 
 gether with three Roman legions. The senate, and even 
 Tiberius himself, thought it unlawful to adopt the use of 
 poison, even against a perfidious enemy, and as a kind of re- 
 taliation or reprisals. 
 
 Assassination and poisoning are therefore contrary to the 
 laws of war, and equally condemned by the law of nature 
 and the consent of all civilized nations. The sovereign who [ 361 ] 
 has recourse to such execrable means should be regarded as 
 the enemy of the human race ; and the common safety of 
 mankind calls on all nations to unite against him, and join 
 their forces to punish him. His conduct particularly au- 
 thorizes the enemy, whom he has attacked by such odious 
 means, to refuse him any quarter. Alexander declared, that 
 "he was determined to proceed to the utmost extremities 
 against Darius, and no longer to consider him as a fair enemy, + 
 but as a poisoner and an assassin."^" 
 
 The interest and safety of men in high command require, 
 that, so far from countenancing the introduction of such prac- 
 
 * Book iii. chap. iv. \ xv. g Armis bella, non venenig, geri de- 
 
 f Oob yap raura a 3 X apir< jupwyuy, bere. Valer. Maxim, lib. vi. ch. v. 
 
 oXX' em-uf ftij ro ttov iraBo; TI/KV <5iaoAijK num. i. 
 
 fi*y*j. Plut in Pyrr. j| Non fraude, neque occultis, sed pa- 
 
 J Sed communis exempli et fidei ergo lam, et armatum, populum Romanum 
 
 visum est, uti te ealvum velimus ; ut hostes sues ulcisci. Tacit Annal. lib. ii. 
 
 esset, quern armis vincere possemus. cap. Ixxxviii. 
 
 AuL Gell. Noct Attic, lib. iiL cap. f Quint Curt lib. iv. cap. xi. num. 
 
 T iii- xviii. 
 
 2P 469
 
 361 OF THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK m. tices, they should use all possible care to prevent it. It was 
 CHAP, via. w isely said by Eumenes, that "he did not think any general 
 wished to obtain a victory in such manner as should set a 
 pernicious example which might recoil on himself."* And it 
 was on the same principle that Alexander formed his judg- 
 ment of Bessus, who had assassinated Darius, f 
 
 156. Whe- The use of poisoned weapons may be excused or defended 
 tW poison- w jth a little more plausibility. At least, there is no treachery 
 ;d weapons m the case, no clandestine machination. But the practice is 
 iiTwar! USe nevertheless prohibited by the law of nature, which does not 
 allow us to multiply the evils of war beyond all bounds. You 
 must of course strike your enemy in order to get the better 
 of his efforts : but if he is once disabled, is it necessary that 
 he should inevitably die of his wounds ? Besides, if you poi- 
 son your weapons, the enemy will follow your example ; and 
 thus, without gaining any advantage on your side for the 
 decision of the contest, you have only added to the cruelty 
 and calamities of war. It is necessity alone that can at all 
 justify nations in making war: they ought universally to 
 abstain from every thing that has a tendency to render it 
 more destructive : it is even a duty incumbent on them to 
 oppose such practices. It is therefore with good reason, and 
 in conformity to their duty, that civilized nations have classed 
 among the laws of war the maxim which prohibits the poison- 
 ing of weapons ;J and they are all warranted by their com- 
 mon safety to repress and punish the first who should offer to 
 break through that law. 
 
 157. Whe- A still more general unanimity prevails in condemning the 
 ther springs p rac ti ce of poisoning waters, wells, and springs, because (say 
 m ^' y e , some authors) we may thereby destroy innocent persons, 
 
 poisoned. / .1 i 11 rrn 
 
 we may destroy other people as well as our enemies. This is 
 indeed an additional reason : but it is not the only nor even 
 [ 362 ] the true one ; for we do not scruple to fire on an enemy's 
 ship, although there be neutral passengers on board. But 
 though poison is not to be used, it is very allowable to divert 
 the water, to cut off the springs, or by any other means to 
 render them useless, that the enemy may be reduced to sur- 
 render^ This is a milder way than that of arms. (163) 
 158. Dis- I cannot conclude this subject, of what we have a right to 
 positions to do against the person of the enemy, without speaking a few 
 
 * Nee Antigonum, nee quemquam (163) But, in modern warfare, what- 
 
 ducum, sic velle vincere, ut ipse in so ever may be the necessary practice in 
 
 exemplum pessimum statuat. Justin, starving the besieged fortress into a 
 
 lib. xiv. cap. i. num. xii. surrender, we have instanced the Eng- 
 
 ) Quern quidem [J5em] cruci ad- lish supplying the French army with 
 
 fixum videre festino, omnibus regibus medicine, to prevent the progress of a 
 
 gentibusque fidei, quam violavit, me- destructive disorder, although, if a petty 
 
 ritas poenas solventum. Q. Curt. lib. policy were allowed to prevail, such an 
 
 vi. ch. iii. num. xiv. indulgence of humane feeling might ap- 
 
 J Grotius, book iii. ch. iv. xvi. pear injudicious (ante). C. 
 
 g Grotius, ibid. xvii. 
 470
 
 OP THE RIGHTS OF NATIONS IN WAR. 
 
 words concerning the dispositions we ought to preserve to- BOOK m. 
 wards him. They may already be deduced from what I have OHAP ' vnr ' 
 
 hitherto said, and especially in the first chapter of the second be P reserve d 
 book. Let us never forget that our enemies are men. Though ^ w " w 
 reduced to the disagreeable necessity of prosecuting our 
 right by force of arms, let us not divest ourselves of that 
 charity which connects us with all mankind. Thus shall we 
 courageously defend our country's rights without violating 
 those of human nature.* Let our valour preserve itself from 
 every stain of cruelty, and the lustre of victory will not be 
 tarnished by inhuman and brutal actions. Marius and Attila 
 are now detested ; whereas we cannot forbear admiring and 
 loving Caesar ; his generosity and clemency almost tempt us 
 to overlook the injustice of his undertaking. Moderation 
 and generosity redound more to the glory of a victor than 
 his courage ; they are more certain marks of an exalted soul. 
 Besides the honour which infallibly accompanies those virtues, 
 humanity towards an enemy has been often attended with 
 immediate and real advantages. Leopold, duke of Austria, 
 besieging Soleure, in the year 1318, threw a bridge over the 
 Aar, and posted on it a large body of troops. Soon after, 
 the river having, by an extraordinary swell of its waters, car- 
 ried away the bridge together with those who were stationed 
 on it, the besieged hastened to the relief of those unfortunate 
 men, and saved the greatest part of them. Leopold, relent- 
 ing at this act of generosity, raised the siege and made peace 
 with the city.f The duke of Cumberland, after his victory 
 at Dettingen,^ appears to me still greater than in the heat of 
 battle. As he was under the surgeon's hands, a French [ 363 ] 
 officer, much more dangerously wounded than himself, being 
 brought that way, the duke immediately ordered his surgeon 
 to quit him, and assist that wounded enemy. If men in ex- 
 alted stations did but conceive how great a degree of affec- 
 tion and respect attends such actions, they would study to 
 
 * The laws of justice and equity are of a bribe, but with a view to save the 
 
 not to be less respected even in time women and children, whom he saw 
 
 of war. The following I quote as a perishing with famine; for Clearchus, 
 
 remarkable instance : Alcibiades, at who commanded the garrison, had given 
 
 the head of an Athenian army, was to the soldiers all the corn that was 
 
 engaged in the siege of Byzantium, found in the city. The Lacedsemoni- 
 
 then occupied by a Lacedaemonian gar- ans, with a noble regard to justice, and 
 
 rison ; and finding that he could not such as seldom prevails on similar oc- 
 
 reduce the city by force, he gained casions, acquitted the culprit, observing 
 
 over some of the inhabitants, who put that he had not betrayed, but saved 
 
 him in possession of it. One of the the city, and particularly attending to 
 
 persons concerned in this transaction the circumstance of his being a 
 
 was Anaxilaus, a citizen of Byzantium, Byzantine, not a Lacedaemonian. 
 
 who, being afterwards brought to trial Xenoph. Hist. Graec. lib. i. cap. iii. 
 
 for it at Lacedaemon, pleaded in his Edit. A. D. 1797. 
 
 defence, that, in surrendering the city, f Watteville's Hist, of the Helvetic 
 
 he had not acted through ill-will to the Confederacy, vol. i. p. 126. 
 Lacedaemonians, or under the influence J In the year 1743. 
 
 471
 
 363 OP THE RIGHTS OF NATIONS IN WAR. 
 
 BOOK m. imitate them, even when not prompted to the practice by 
 CHAP. Tin. na tj ve elevation of sentiment. At present, the European 
 nations generally carry on their wars with great moderation 
 and generosity. These dispositions have given rise to several 
 customs which are highly commendable, and frequently car- 
 ried to the extreme of politeness.* Sometimes refreshments 
 are sent to the governor of a besieged town ; and it is usual 
 to avoid firing on the king's or the general's quarters. We 
 are sure to gain by this moderation, when we have to do with 
 a generous enemy : but we are not bound to observe it any 
 further than can be done without injuring the cause we de- 
 fend; and it is clear that a prudent general will, in this 
 respect, regulate his conduct by the circumstances of the 
 case, by an attention to the safety of the army and of the 
 state, by the magnitude of the danger, and by the character 
 and behaviour of the enemy. Should a weak nation or town 
 be attacked by a furious conqueror who threatens to destroy 
 it, are the defenders to forbear firing on his quarters ? Far 
 from it : that is the very place to which, if possible, every 
 shot should be directed. 
 
 2 159. Ten- Formerly, he who killed the king or general of the enemy 
 derness for was commended and greatly rewarded : the honours annexed 
 the person t ne S p n a opima are well known. Nothing was more natural : 
 w^oU^n in former times, the belligerent nations had, almost in every 
 arms against instance, their safety and very existence at stake ; and the 
 ua. death of the leader often put an end to the war. In our 
 
 days, a soldier would not dare to boast of having killed the 
 enemy's king. Thus sovereigns tacitly agree to secure their 
 own persons. It must be owned, that, in a war which is car- 
 ried on with no great animosity, and where the safety and 
 existence of the state are not involved in the issue, this 
 regard for regal majesty is perfectly commendable, and even 
 consonant to the reciprocal duties of nations. In such a war, 
 to take away the life of the enemy's sovereign, when it might 
 be spared, is perhaps doing that nation a greater degree of 
 harm than is necessary for bringing the contest to a happy 
 issue. But it is not one of the laws of war that we should on 
 
 * Timur-bec made war on Joseph share those new fruits with that prince 
 
 Sofy, king of Carezem, and subdued when so near him : and accordingly he 
 
 his kingdom. During the course of ordered them to be put into a gold 
 
 the war, that great man proved him- basin, and carried to him. The king 
 
 self to be possessed of all that modera- of Carezem received this instance of 
 
 tion and politeness which is thought politeness in a brutal manner; he or- 
 
 peculiar to our modern warriors. Some dered the melons to be thrown into 
 
 melons being brought to him whilst he the fosse, and gave the basin to the 
 
 was besieging Joseph in the city of city gate-keeper. La Croix, Hist, of 
 
 Eskiskus, ho resolved to send a part Timur-bec, book v. ch. xxvii. Edit, 
 
 of them to his enemy, thinking it A.D. 1797. 
 would be a breach of civility not to 
 472
 
 OF THE RIGHT OVER ENEMIES' PROPERTY. 
 
 363 
 
 every occasion spare the person of the hostile king : we are BOOK. m. 
 not bound to observe that moderation except where we have CHAP. Tin. 
 a fair opportunity of making him prisoner.* 
 
 CHAP. IX. 
 
 [364] 
 
 OF THE RIGHT OF WAR, WITH REGARD TO THINGS BELONGING CHAP, ix. 
 TO THE ENEMY. (164) 
 
 A STATE taking up arms in a just cause has a double ieo. Prin- 
 right against her enemy, 1. a right to obtain possession of ci P les of tne 
 her property withheld by the enemy; to which must be added jjjj*^" 
 the expenses incurred in the pursuit of that object, the lon gfn g to 
 charges of the war, and the reparation of damages : for, were the enemy, 
 she obliged to bear those expenses and losses, she would not 
 fully recover her property, or obtain her due. 2. She has a 
 right to weaken her enemy, in order to render him incapable 
 of supporting his unjust violence ( 138) a right to deprive 
 him of the means of resistance. Hence, as from their source, 
 originate all the rights which war gives us over things belong- 
 ing to the enemy. I speak of ordinary cases, and of what 
 
 * On this subject, let us notice a 
 trait of Charles XII. of Sweden, in 
 which sound reason and the most ex- 
 alted courage are equally conspicuous. 
 That prince, being engaged in the siege 
 of Thorn in Poland, and frequently 
 walking round the city, was easily dis- 
 tinguished by the cannoneers, who 
 regularly fired upon him as soon as 
 they saw him make his appearance. 
 The principal officers of his army, great- 
 ly alarmed at their sovereign's danger, 
 wished to have information sent to the 
 governor, that, if the practice was con- 
 tinued, no quarter should bo granted 
 either to him or to the garrison. But 
 the Swedish monarch would never per- 
 mit such a step to be taken, telling his 
 officers that the governor and the Saxon 
 cannoneers were perfectly right in act- 
 ing as they did, that it was himself 
 who made the attack upon them, and 
 that the war would be at an end if 
 they could kill him; whereas they 
 would reap very little advantage even 
 from killing the principal officers of his 
 army. Histoire du Nord, p. 26. Edit 
 A. D. 1797. 
 
 (164) See, in general, Grotius, ch. 
 6 ; Home on Captures 5 Marten's L. Nat. 
 
 287 ; and the modern decisions, 1 Chit- 
 ty's Commercial Law, 377 i37; and 
 Chitty's Law of Nations, per tot. And 
 as to the legal right of embargo and 
 capture, as it affects commerce, and ex- 
 ceptions, as respects small fishing vessels, 
 1 Chitty's C. L. 426. But, that exemp- 
 tion is matter of forbearance, rather than 
 of right, and seems analogous to hus- 
 bandmen and cultivators of land being 
 usually spared, see Vattel, 147, ante, 
 352 ; and see Young, Jacob, and Johorca, 
 1 Rob. Rep. 19, as to fishing-boats and 
 fishermen, per Sir Wm. Scott. 
 
 Questions respecting captures and 
 prizes, or even imprisonment of the 
 person incident to the seizure as prize, 
 cannot in general become the subject 
 of litigation, directly, in any of the mu- 
 nicipal courts of this country, but must 
 be investigated in a prize court, which, 
 in this country, is holden under a dis- 
 tinct authority from that of the court 
 of Admiralty, viz. under a special com- 
 mission from the king, who would 
 otherwise preside in person over prize 
 questions: and from such commission 
 there is usually an appeal to the king 
 in council; see cases in note (165), posit 
 365. C. 
 
 60 
 
 2p2 
 
 473
 
 364 OF THE RIGHT OVER ENEMIES' PROPERTY. 
 
 BOOK in. particularly relates to the enemy's property. On certain oc- 
 CHAP. ix. cas i ons> the right of punishing him produces new rights over 
 the things which belong to him, as it also does over his person. 
 These we shall presently consider. 
 
 161. The We have a right to deprive our enemy of his possessions, 
 right of O f every thing which may augment his strength and enable 
 them^ U h* m * ma ^ e war * This every one endeavours to accomplish 
 in the manner most suitable to him. Whenever we have an 
 opportunity, we seize on the enemy's property, and convert 
 it to our own use : and thus, besides diminishing the enemy's 
 power, we augment our own, and obtain at least a partial in- 
 demnification or equivalent, either for what constitutes the 
 subject of the war, or for the expenses and losses incurred in 
 its prosecution : in a word, we do ourselves justice. 
 \ 162. What The right to security often authorizes us to punish injustice 
 is taken or violence. It is an additional plea for depriving an enemy 
 ^iTm^b ^ some P ar t f his possessions. This manner of chastising a 
 way m of pe _ nation is more humane than making the penalty to fall on the 
 naity. persons of the citizens. With that view, things of value may 
 [ 365 ] be taken from her, such as rights, cities, provinces. But all 
 wars do not afford just grounds for inflicting punishment. A 
 nation that has with upright intentions supported a bad cause, 
 and observed moderation in the prosecution of it, is entitled 
 rather to compassion than resentment from a generous con- 
 queror : and in a doubtful cause we are to suppose that the 
 enemy sincerely thinks himself in the right. (Prelim. 21 ; 
 Book III. 40.) The only circumstance, therefore, which 
 gives an enemy the right to punish his adversaries, is their 
 evident injustice, unsupported even by any plausible pretext, 
 or some heinous outrage in their proceedings : and, on every 
 occasion, he ought to confine the punishment to what his own 
 security and the safety of nations require. As far as consistent 
 with prudence, it is glorious to obey the voice of clemency : 
 that amiable virtue seldom fails of being more useful to the 
 party who exerts it, than inflexible rigour. The clemency of 
 Henry the Great was of singular advantage in co-operating 
 with his valour, when thaj good prince found himself com- 
 pelled to conquer his ovn kingdom. Those who would have 
 continued his enemies if only subdued by arms, were won by 
 his goodness, and became affectionate subjects. 
 
 \ 163. What In fine, we seize on the enemy's property, his towns, his 
 is withheld provinces, in order to bring him to reasonable conditions, and 
 from him, compe i him to accept of an equitable and solid peace. Thus 
 
 in order to i f i_* At: i. 1.1. 
 
 oblige him mucn more is taken from him than he owes, more than is 
 
 to give just claimed of him : but this is done with a design of restoring 
 
 atisfaction. the surplus by a treaty of peace. The king of France* was, 
 
 in the last war, known to declare that he aimed at nothing for 
 
 * The peace was become absolutely with all its dependencies, which were 
 
 necessary to him ; and he had, in re- of more importance to him. [Note by 
 
 turn fr his few conquests, Louisbourg, the former translator.] 
 474
 
 OF THE RIGHT OVER ENEMIES* PROPERTY. 
 
 365 
 
 himself: and by the treaty of Aix-la-Chapelle, he actually BOOK m. 
 restored all his conquests. CHAP, ix. 
 
 As the towns and lands taken from the enemy are called ? 164. 
 conquests, all movable property taken from him comes under Booty.(i65) 
 the denomination of booty. This booty naturally belongs to 
 the sovereign making war, no less than the conquests ; for he 
 alone has such claims against the hostile nation as warrant 
 him to seize on her property and convert it to his own use. (165) 
 His soldiers, and even his auxiliaries, are only instruments 
 which he employs in asserting his right. He maintains and 
 pays them. Whatever they do is in his name, and for him. 
 Thus, there is no difficulty, even with regard to the auxiliaries. 
 If they are not associates in the war, it is not carried on for 
 their benefit ; and they have no more right to the booty than 
 to the conquests. But the sovereign may grant the troops 
 what share of the booty he pleases. At present most nations 
 allow them whatever they can make on certain occasions when [ 366 ] 
 the general allows of plundering, such as the spoil of ene- 
 mies fallen in the field of battle, the pillage of a camp which 
 
 (165) That they belong to the king, 
 unless delegated to a subject, see fur- 
 ther, post, 202, page 391. But to the 
 king for the benefit of the community, 
 and not as his own private property. 
 Id. ibid. In case a territory of a fo- 
 reign sovereign, or a part of it, be cap- 
 tured, the sovereign of the conquering 
 state is entitled to all the property there 
 of the conquered sovereign ; Advocate 
 General v. Amerchund, Knapp's Rep. 
 of Cases before the Privy Council, 329 ; 
 and the same case establishes that 
 there is no distinction, in this respect, 
 between the public and private property 
 of an absolute monarch; and that, 
 therefore, money in the hands of the 
 banker of a prince, whose territories 
 have been conquered by the British, 
 may be recovered on an information 
 by the English attorney-general from 
 the banker. Decided in Privy Council, 
 reversing the judgment of the court be- 
 low at Bombay. See Holt's case, Ni. 
 Pri. 113; Undo v. Rodney, Douglas, 
 313 ; Caux v. Eden, Douglas, 594 ; El- 
 phinstone v. Bedreechund, Knapp's Rep. 
 316; Chitty's Gen. Practice, 2 n. (6), 
 16 n. (e), Id. 818. But to this rule 
 there is an exception, as regards any 
 trust which may be enforced in a court 
 of equity ; Pearton v. Belcher, 4 Ves. 
 827 ; Chaloner v. Samson, 1 Bro. pi. 149 ; 
 and see Hill v. Reardon, 2 Russell's 
 Rep. 608, qualifying 2 Sim. A Stu. Rep. 
 437451; Chitty's Gen. Practice, 818. 
 When the property seized is under 
 
 100, the claim may be settled in the 
 prize court, summarily, and without a 
 formal suit ; but not so, if it be even a 
 trifle above that amount. The Mercurius, 
 5 Rob. 127. 
 
 In the case of Elphinstone v. Bedree- 
 chund, Knapp's Rep. 316, where the 
 members of the provisional government 
 of a recently conquered country had 
 seized the property of a native, who 
 had been refused the benefit of the ar- 
 ticles of capitulation of a fortress, of 
 which he was the governor, but who 
 had been permitted to reside under 
 military surveillance in his own house 
 in the city, in which the seizure was 
 made, and which was at a distance 
 from the scene of actual hostilities, it 
 was held that such seizure must be re- 
 garded in the light of a hostile seizure, 
 and that, therefore, a municipal court 
 had no jurisdiction on the subject. 
 And it was further considered, in the 
 same case, that the circumstance that, 
 at the time of the seizure, the city 
 where it was made had been, for some 
 months previously, in the undisturbed 
 possession of the provisional govern- 
 ment, and that courts of justice, under 
 the authority of that government, were 
 sitting in it for the administration of 
 justice, did not alter the character of 
 the transaction ; and that, consequently, 
 whatever might be the legality of the 
 capture, or hostile seizure, still the party 
 had mistaken his remedy in prosecuting 
 it in the supreme court of Bombay. C. 
 475
 
 366 OF THE RIGHT OVER ENEMIES PROPERTY. 
 
 BOOK in. has been forced, and sometimes that of a town taken by as- 
 _CHAP. ix. gau ik j n se veral services, the soldier has also the property 
 of what he can take from the enemy's troops when he is out 
 on a party, or in a detachment, excepting artillery, military 
 stores, magazines, and convoys of provisions and forage, which 
 are applied to the wants and use of the army. This custom 
 being once admitted in an army, it would be injustice to ex- 
 clude the auxiliaries from the right allowed to the national 
 troops. Among the Romans, the soldier was obliged to bring 
 in to the public stock all the booty he had taken. This the 
 general caused to be sold ; and, after distributing a part of 
 the produce among the soldiers, according to rank, he con- 
 signed the residue to the public treasury. 
 
 g 165. Con- Instead of the custom of pillaging the open country and 
 tributions. defenceless places, another mode has been substituted, which 
 is at once more humane, and more advantageous to the bel- 
 ligerent sovereign I mean that of contributions. Whoever 
 carries on a just war has a right to make the enemy's country 
 contribute to the support of his army, and towards defraying 
 all the charges of the war. Thus, he obtains a part of what 
 is due to him ; and the enemy's subjects, by consenting to 
 pay the sum demanded, have their property secured from pil- 
 lage, and the country is preserved. But a general who wishes 
 to enjoy an unsullied reputation, must be moderate in his de- 
 mand of contributions, and proportion them to the abilities of 
 those on whom they are imposed. An excess in this point 
 does not escape the reproach of cruelty and inhumanity : al- 
 though there is not so great an appearance of ferocity in it as 
 in ravage and destruction, it displays a greater degree of 
 avarice or greediness. Instances of humanity and moderation 
 cannot be too often quoted. A very commendable one oc- 
 curred during those long wars which France carried on in the 
 reign of Louis XIV. The sovereigns, seeing it was their mu- 
 tual interest as well as duty to prevent ravage, made it a 
 practice, on the commencement of hostilities, to enter into 
 treaties for regulating the contributions on a supportable foot- 
 ing : they determined the extent of hostile territory in which 
 each might demand contributions, the amount of them, and 
 the manner in which the parties sent to levy them were to be- 
 have. In these treaties it was expressed, that no body of 
 men under a certain number should advance into the enemy's 
 country beyond th limits agreed on, under the penalty of be- 
 ing treated as freebooters. By such steps they prevented a 
 multitude of disorders and enormities, which entail ruin on 
 the people, and generally without the least advantage to the 
 belligerent sovereigns. Whence comes it that so noble an ex- 
 ample is not universally imitated ? 
 
 166. Waste If it is lawful to take away the property of an unjust enemy 
 and destruc- j n or <j er to weaken or punish him, ( 161, 162), the same mo- 
 tives justify us in destroying what we cannot conveniently
 
 OP THE RIGHT OVER ENEMIES' PROPERTY. 366 
 
 carry away. Thus, we waste a country, and destroy the pro- BOOK m. 
 
 *4rt 1 1 f* t l ** n * '"*' 
 
 visions and forage, that the enemy may not find a subsistence 
 
 there : we sink his ships when we cannot take them or bring [ 367 ] 
 them off. All this tends to promote the main object of the 
 war : but such measures are only to be pursued with modera- 
 tion, and according to the exigency of the case. Those who 
 tear up the vines and cut down the fruit-trees are looked upon 
 as savage barbarians, unless when they do it with a view to 
 punish the enemy for some gross violation of the law of na- 
 tions. They desolate a country for many years to come, and 
 beyond what their own safety requires. Such conduct is not 
 dictated by prudence, but by hatred and fury. 
 
 On certain occasions, however, matters are carried still 167. Ra- 
 farther : a country is totally ravaged, towns and villages are v& s"^s and 
 sacked, and delivered up a prey to fire and sword. Dread- urnmg- 
 ful extremities, even when we are forced into them ! Savage 
 and monstrous excesses, when committed without necessity ! 
 There are two reasons, however, which may authorize them, 
 1. the necessity of chastising an unjust and barbarous nation, 
 of checking her brutality, and preserving ourselves from her 
 depredations. Who can doubt that the king of Spain and the 
 powers of Italy have a very good right utterly to destroy those 
 maritime towns of Africa, those nests of pirates, that are con- 
 tinually molesting their commerce and ruining their subjects? 
 But what nation will proceed to such extremities merely for 
 the sake of punishing the hostile sovereign? It is but in- 
 directly that he will feel the punishment : and how great the 
 cruelty, to ruin an innocent people in order to reach him ! 
 The same prince whose firmness and just resentment was com- 
 mended in the bombardment of Algiers, was, after that of 
 Genoa, accused of pride and inhumanity* 2. We ravage a 
 country and render it uninhabitable, in order to make it serve 
 us as a barrier, and to cover our frontier against an enemy 
 whose incursions we are unable to check by any other means. 
 A cruel expedient, it is true : but why should we not be al- 
 lowed to adopt it at the expense of the enemy, since, with the 
 same view, we readily submit to lay waste our own provinces ? 
 
 The czar Peter the Great, in his flight before the formidable 
 Charles the Twelfth, ravaged an extent of above fourscore 
 leagues of his own empire, in order to check the impetuosity 
 of a torrent which he was unable to withstand. Thus, the 
 Swedes were worn down with want and fatigue ; and the Kus- 
 sian monarch reaped at Pultowa the fruits of his circumspec- 
 tion and sacrifices. But violent remedies are to be sparingly 
 applied : there must be reasons of suitable importance to jus- 
 tify the use of them. A prince who should, without necessity, 
 imitate the czar's conduct, would be guilty of a crime against 
 his people : and he who does the like in an enemy's country, 
 when impelled to it by no necessity, or induced by feeble rea- 
 sons, becomes the scourge of mankind. In the last century, 
 
 477
 
 368 OF THE RIGHT OVER ENEMIES' PROPERTY. 
 
 BOOK m. the French ravaged and burnt the Palatinate.* All Europe 
 _CHAP. ix. resoun d e d w it n invectives against such a mode of waging war. 
 It was in vain that the court attempted to palliate their con- 
 duct, by alleging that this was done only with a view to cover 
 their own frontier : that was an end to which the ravaging 
 of the Palatinate contributed but little : and the whole pro- 
 ceeding exhibited nothing to the eyes of mankind but the 
 revenge and cruelty of a haughty and unfeeling minister. 
 \ 168. What For whatever cause a country is ravaged, we ought to 
 things are to spare those edifices which do honour to human society, and 
 be spared, fo no f. contribute to increase the enemy's strength, such as 
 temples, tombs, public buildings, and all works of remarkable 
 beauty. What advantage is obtained by destroying them ? 
 It is declaring one's self an enemy to mankind, thus wantonly 
 to deprive them of these monuments of art and models of 
 taste ; and in that light Belisarius represented the matter to 
 Tottila, king of the Goths, f We still detest those barbarians 
 who destroyed so many wonders of art, when they overran 
 the Roman empire. However just the resentment with which 
 the great Gustavus was animated against Maximilian, duke 
 of Bavaria, he rejected with indignation the advice of those 
 who wished him to demolish the stately palace of Munich, 
 and took particular care to preserve that admirable structure. 
 Nevertheless, if we find it necessary to destroy edifices of 
 that nature in order to carry on the operations of war, or to 
 advance the works in a siege, we have an undoubted right to 
 take such a step. The sovereign of the country, or his 
 general, makes no scruple to destroy them, when necessity or 
 the maxims of war require it. The governor of a besieged 
 town sets fire to the suburbs, that they may not afford a lodg- 
 ment to the besiegers. Nobody presumes to blame a general 
 who lays waste gardens, vineyards, or orchards, for the pur- 
 pose of encamping on the ground, and throwing up an en- 
 trenchment. If any beautiful production of art be thereby 
 destroyed, it is an accident, an unhappy consequence of the 
 war; and the general will not be blamed, except in those 
 cases when he might have pitched his camp elsewhere without 
 the smallest inconvenience to himself. 
 
 3 169. Bom- In bombarding towns, it is difficult to spare the finest edi- 
 barding fices. At present we generally content ourselves with batter- 
 towns. j n g t ne ramparts and defences of a place. To destroy a town 
 with bombs and red-hot balls, is an extremity to which we do 
 not proceed without cogent reasons. But it is nevertheless 
 warranted by the laws of war, when we are unable by any 
 other mode to reduce an important post, on which the suc- 
 cess of the war may depend, or which enables the enemy to 
 
 * In 1674, and a second time, much is quoted by Grotius, lib. iii. cap. xii. 
 more dreadfully, in 1689. g ii. note xi. 
 
 j- See his letter in Procopius. It 
 
 478
 
 OF THE RIGHT OVER ENEMIES' PROPERTY. 368 
 
 annoy us in a dangerous manner. It is also sometimes prac- BOOK m. 
 tised when we have no other means of forcing an enemy to CHAP ' IX ' 
 make war with humanity, or punishing him for some instance 
 of outrageous conduct. But it is only in cases of the last 
 extremity, and with reluctance, that good princes exert a 
 right of so rigorous a nature. In the year 1694, the English [ 369 ] 
 bombarded several maritime towns of France, on account of 
 the great injury done to the British trade by their privateers. 
 But the virtuous and noble-minded consort of William the 
 Third did not receive the news of these exploits with real 
 satisfaction. She expressed a sensible concern that war 
 should render such acts of hostility necessary, adding, that 
 she hoped such operations would be viewed in so odious a 
 light, as to induce both parties to desist from them in future.* 
 
 Fortresses, ramparts, and every kind of fortification are 170. De- 
 solely appropriated to the purposes of war : and in a just moiition of 
 war, nothing is more natural, nothing more justifiable, than fortre8ses - 
 to demolish those which we do not intend to retain in our own 
 possession. We so far weaken the enemy, and do not involve 
 an innocent multitude in the losses which we cause him. This 
 was the grand advantage that France derived from her vic- 
 tories in a war in which she did not aim at making conquests. 
 
 Safe-guards are granted to lands and houses intended to 171. Safe- 
 be spared, whether from pure favour, or with the proviso of guards, 
 a contribution. These consist of soldiers, who protect them 
 against parties, by producing the general's orders. The per- 
 sons of these soldiers must be considered by the enemy as 
 sacred : he cannot commit any hostilities against them, since 
 they have taken their station there as benefactors, and for 
 the safety of his subjects. They are to be respected in the 
 same manner as an escort appointed to a garrison, or to pri- 
 soners of war, on their return to their own country. 
 
 What we have advanced is sufficient to give an idea of the 172. Ge- 
 moderation which we ought to observe, even in the most just neral ro | e of 
 war, in exerting our right to pillage and ravage the enemy's d *^ on 
 country. Except the single case in which there is question thTevii 1 ^ 
 of punishing an enemy, the whole is reducible to this general which may 
 rule. All damage done to the enemy unnecessarily, every be done to 
 act of hostility which does not tend to procure victory and an enem y* 
 bring the war to a conclusion, is a licentiousness condemned 
 by the law of nature. 
 
 But this licentiousness is unavoidably suffered to pass with 1 173. Rule 
 impunity, and to a certain degree, tolerated, between nation of the v - 
 and nation. How then shall we, in particular cases, deter- Jj"^,^ 
 mine with precision to what lengths it was necessary to carry on t he same 
 hostilities, in order to bring the war to a happy conclusion ? subject 
 And even if the point could be exactly ascertained, nations 
 acknowledge no common judge: each forms her own judg- 
 
 * Histoire de Gu'llaume HL liv. vi. torn. ii. p. 66. 
 
 479
 
 369 OF THE RIGHT OVER ENEMIES' PROPERTY. 
 
 BOOK in. ment of the conduct she is to pursue in fulfilling her duties. 
 
 CHAP, ix. if y OU once O p en a d oor f or continual accusations of outrage- 
 ous excess in hostilities, you will only augment the number 
 of complaints, and inflame the minds of the contending parties 
 with increasing animosity : fresh injuries will be perpetually 
 springing up ; and the sword will never be sheathed till one 
 [ 370 ] of the parties be utterly destroyed. The whole, therefore, 
 should, between nation and nation, be confined to general 
 rules, independent of circumstances, and sure and easy in the 
 application. Now the rules cannot answer this description, 
 unless they teach us to view things in an absolute sense, to 
 consider them in themselves and in their own nature. As, 
 therefore, with respect to hostilities against the enemy's per- 
 son, the voluntary law of nations only prohibits those mea- 
 sures which are in themselves unlawful and odious, such as 
 poisoning, assassination, treachery, the massacre of an enemy 
 who has surrendered and from whom we have nothing to 
 fear, so the same law, in the question now before us, con- 
 demns every act of hostility which, of its own nature, and in- 
 dependently of circumstances, contributes nothing to the suc- 
 cess of our arms, and does not increase our strength or 
 weaken that of the enemy : and, on the other hand, it per- 
 mits or tolerates every act which in itself is naturally adapted 
 to promote the object of the war, without considering whether 
 such act of hostility was unnecessary, useless, or superfluous, 
 in that particular instance, unless there be the clearest evi- 
 dence to prove that an exception ought to have been made in 
 the case in question : for where there is positive evidence, the 
 freedom of judgment no longer exists. Hence, the pillaging 
 of a country, or ravaging it with fire, is not, in a general 
 view of the matter, a violation of the laws of war : but if an 
 enemy of much superior strength treats in this manner a 
 town or province which he might easily keep in his possession 
 as a means of obtaining an equitable and advantageous peace, 
 he is universally accused of making war like a furious barba- 
 rian. Thus the wanton destruction of public monuments, 
 temples, tombs, statues, paintings, &c., is absolutely con- 
 demned, even by the voluntary law of nations, as never be- 
 ing conducive to the lawful object of war. The pillage and 
 destruction of towns, the devastation of the open country, 
 ravaging, setting fire to houses, are measures no less odious 
 and detestable on every occasion when they are evidently put 
 in practice without absolute necessity, or at least very cogent 
 reasons. But as the perpetrators of such outrageous deeds 
 might attempt to palliate them under pretext of deservedly 
 punishing the enemy, be it here observed, that the natural 
 and voluntary law of nations does not allow us to inflict such 
 punishments, except for enormous offences against the law of 
 nations : and even then, it is glorious to listen to the voice 
 of humanity and clemency, when rigour is not absolutely ne-
 
 OF FAITH BETWEEN ENEMIES. 370 
 
 cessary. Cicero condemns the conduct of his countrymen in BOOK ra. 
 destroying Corinth to avenge the unworthy treatment offered CHAP, ix. 
 to the Roman ambassadors, because Rome was able to assert 
 the dignity of her ministers without proceeding to such ex- 
 treme rigour. 
 
 CHAP. X. [ 371 ] 
 
 OF FAITH BETWEEN ENEMIES, OF STRATAGEMS, ARTIFICES IN CHAP. x. 
 WAR, SPIES, AND SOME OTHER PRACTICES. 
 
 THE faith of promises and treaties is the basis of the peace 174. Faith 
 of nations, as we have shown in an express chapter (Book II. |^ e ** cred 
 Ch. XV.) It is sacred among men, and absolutely essential enem i es . 
 to their common safety. Are we then dispensed from it to- 
 wards an enemy ? To imagine that between two nations at 
 war every duty ceases, every tie of humanity is broken, would 
 be an error equally gross and destructive. Men, although re- 
 duced to the necessity of taking up arms for their own de- 
 fence, and in support of their rights, do not therefore cease to 
 be men. They are still subject to the same laws of nature : 
 otherwise there would be no laws of war. Even he who wages 
 an unjust war against us is still a man : we still owe him what- 
 ever that quality requires of us. But a conflict arises between 
 our duties towards ourselves, and those which connect us with 
 other men. The right to security authorizes us to put in prac- 
 tice, against this unjust enemy, every thing necessary for re- 
 pelling him, or bringing him to reason. But all those duties, 
 the exercise of which is not necessarily suspended by this con- 
 flict, subsist in their full force : they are still obligatory on us, 
 both with respect to the enemy and to all the rest of mankind. 
 Now, the obligation of keeping faith is so far from ceasing in 
 time of war by virtue of the preference which the duties to- 
 wards ourselves are entitled to, that it then becomes more ne- 
 cessary than ever. There are a thousand occasions, even in 
 the course of the war, when, in order to check its rage, and 
 alleviate the calamities which follow in its train, the mutual 
 interest and safety of both the contending parties requires 
 that they should agree on certain points. What would be- 
 come of prisoners of war, capitulating garrisons, and towns 
 that surrender, if the word of an enemy were not to be relied 
 on ? War would degenerate into an unbridled and cruel licen- 
 tiousness : its evils would be restrained by no bounds ; and 
 how could we ever bring it to a conclusion and re-establish 
 peace ? If faith be banished from among enemies, a war can 
 never be terminated with any degree of safety, otherwise than 
 by the total destruction of one of the parties. The slightest 
 
 61 2 Q 481
 
 371 OF FAITH BETWEEN ENEMIES. 
 
 BOOK in. difference, the least quarrel, would produce a war similar to 
 CHAP. x - that of Hannibal against the Romans, in which the parties 
 fought, not for this or that province, not for sovereignty or 
 for glory, but for the very existence of their respective na- 
 [ 372 ] tions.* Thus it is certain that the faith of promises and trea- 
 ties is to be held sacred in war as well as in peace, between 
 enemies as well as between friends. (166) 
 
 175. What The conventions, the treaties made with a nation, are broken 
 treaties are or annulled by a war arising between the contracting parties, 
 t0 b& Ab e ^ ner because those compacts are grounded on a tacit suppo- 
 tw^n ene- sition of the continuance of peace, or because each of the par- 
 mies. ties, being authorized to deprive his enemy of what belongs to 
 
 him, takes from him those rights which he had conferred on 
 him by treaty. Yet here we must except those treaties by 
 which certain things are stipulated in case of a rupture, as, 
 for instance, the length of time to be allowed on each side for 
 the subjects of the other nation to quit the country, the neu- 
 trality of a town or province, insured by mutual consent, &c. 
 Since, by treaties of this nature, we mean to provide for what 
 shall be observed in case of a rupture, we renounce the right 
 of cancelling them by a declaration of war. 
 
 For the same reason, all promises made to an enemy in the 
 course of a war are obligatory. For when once we treat with 
 him whilst the sword is unsheathed, we tacitly but necessarily 
 renounce all power of breaking the compact by way of com- 
 pensation or on account of the war, as we cancel antecedent 
 treaties, otherwise it would be doing nothing, and there would 
 be an absurdity in treating with the enemy at all. 
 176. On g ut conven tions made during a war are like all other com- 
 Hon! they" P acts anc * treaties, of which the reciprocal observance is a tacit 
 may be condition (Book II. 202) : we are no longer bound to observe 
 broken. them towards an enemy who has himself been the first to vio- 
 late them. And even where there is question of two separate 
 conventions which are wholly unconnected with each other, 
 although we are never justifiable in using perfidy on the plea 
 of our having to do with an enemy who has broken his word 
 on a former occasion, we may nevertheless suspend the effect 
 of a promise in order to compel him to repair his breach of 
 faith ; and what we have promised him may be detained by 
 way of security, till he has given satisfaction for his perfidy. 
 Thus, at the taking of Namur, in 1695, the King of England 
 caused Marshal Boufflers to be put under arrest, and, notwith- 
 standing the capitulation, detained him prisoner, for the pur- 
 pose of obliging France to make reparation for the infractions 
 of the capitulations of Dixmude and Deinse.f 
 
 * De salute certatum est. Britain of contracts of rantom, consti- 
 
 (166) To this doctrine, the prohibi- tute exceptions, post, 4034 4. C. 
 
 tion of subjects of belligerent states | Histoire de Guillaume III. torn. ii. 
 
 having commercial contracts with each p. 148. 
 
 other, and the prohibition in
 
 OF FAITH BETWEEN ENEMIES. 
 
 372 
 
 Good-faith consists not only in the observance of our pro- BOOK m. 
 mises, but also in not deceiving on such occasions as lay us CHAP, x. 
 under any sort of obligation to speak the truth. From this m Of 
 subject arises a question which has been warmly debated in ii es . 
 former days, and which appeared not a little intricate at a 
 time when people did not entertain just or accurate ideas re- 
 specting the nature of a lie. Several writers, and especially 
 divines, have made truth a kind of deity, to which, for its own 
 sake, and independently of its consequences, we owe a certain 
 inviolable respect. They have absolutely condemned every [ 373 ] 
 speech that is contrary to the speaker's thoughts : they have 
 pronounced it to be our duty, on every occasion when we can- 
 not be silent, to speak the truth according to the best of our 
 knowledge, and to sacrifice to their divinity our dearest in- 
 terests rather than be deficient in respect to her. But philo- 
 terests, of more accurate ideas and more profound penetra- 
 tion have cleared up that notion, so confused, and so false in its 
 consequences. They have acknowledged that truth in general 
 is to be respected, as being the soul of human society, the basis 
 of all confidence in the mutual intercourse of men, and, con- 
 sequently, that a man ought not to speak an untruth, even 
 in matters of indifference, lest he weaken the respect due to 
 truth in general, and injure himself by rendering his veracity 
 questionable even when he speaks seriously. But in thus 
 grounding the respect due to truth on its effects, they took the 
 right road, and soon found it easy to distinguish between the 
 occasions when we are obliged to speak the truth, or declare 
 our thoughts, and those when there exists no such obligation. 
 The appellation of lies is given only to the words of a man 
 who speaks contrary to his thoughts, on occasions when he is 
 under an obligation to speak the truth. Another name (in 
 Latin, falsiloquium*) is applied to any false discourse to per- 
 sons who have no right to insist on our telling them the truth 
 in the particular case in question. 
 
 These principles being laid down, it is not difficult to ascer- 
 tain the lawful use of truth or falsehood towards an enemy on 
 particular occasions. Whenever we have expressly or tacitly 
 engaged to speak truth, we are indispensably obliged to it by 
 that faith of which we have proved the inviolability. Such is 
 the case of conventions and treaties : it is indispensably ne- 
 cessary that they should imply a tacit engagement to speak 
 the truth ; for it would be absurd to allege that we do not en- 
 ter into any obligation of not deceiving the enemy under 
 colour of treating with him : it would be downright mockery, 
 it would be doing nothing. We are also bound to speak the 
 truth to an enemy on all occasions when we are naturally 
 obliged to it by the laws of humanity, that is to say, when- 
 ever the success of our arms, and the duties we owe to our- 
 
 * Falsiloquy, false speaking, untruth, falsehood. 
 
 483
 
 373 OF FAITH BETWEEN ENEMIES. 
 
 BOOK in. selves, do not clash with the common duties of humanity, so 
 CHAF - * as to suspend their force in the present case, and dispense 
 with our performance of them. Thus, when we dismiss pri- 
 soners, either on ransom or exchange, it would be infamous 
 to point out the worst road for their march, or to put them in 
 a dangerous one : and should the hostile prince or general in- 
 quire after a woman or child who is dear to him, it would be 
 scandalous to deceive him. 
 
 178. Stra- But when, by leading the enemy into an error, either by 
 tagems and wor( j s j n w hich we are not obliged to speak truth, or by some 
 war/ 6 ' ^ fein^ we can gain an advantage in the war, which it would be 
 lawful to seek by open force, it cannot be doubted that such 
 [ 374 ] a proceeding is perfectly justifiable. Nay, since humanity 
 obliges us to prefer the gentlest methods in the prosecution 
 of our rights, if, by a stratagem, by a feint void of perfidy, 
 we can make ourselves masters of a strong place, surprise the 
 enemy, and overcome him, it is much better, it is really more 
 commendable, to succeed in this manner, than by a bloody 
 siege or the carnage of a battle.* But the desire to spare the 
 effusion of blood will by no means authorize us to employ per- 
 fidy, the introduction of which would be attended with conse- 
 quences of too dreadful a nature, and would deprive sove- 
 reigns, once embarked in war, of all means of treating to- 
 gether, or restoring peace ( 174). 
 
 Deceptions practised on an enemy, either by words or 
 actions, but without perfidy, snares laid for him consistent 
 with the rights of war, are stratagems, the use of which has 
 always been acknowledged as lawful, and had often a great 
 share in the glory of celebrated commanders. The king of 
 England (William III.) having discovered that one of his se- 
 cretaries regularly sent intelligence of every thing to the hos- 
 tile general, caused the traitor to be secretly put under ar- 
 rest, and made him write to the duke of Luxembourg that the 
 next day the allies would make a general forage, supported 
 by a large body of infantry with cannon : and this artifice he 
 
 * There was a time when those who and this custom is more consonant to 
 were taken in attempting to surprise a reason and humanity. Nevertheless, 
 town, were put to death. In 1597, if they were in disguise, or had em- 
 prince Maurice attempted to take Yen- ployed treachery, they would be treated 
 loo by surprise : the attempt failed ; and as spies ; and this is, perhaps, what 
 some of his men, being made prisoners Grotius means ; for I do not, in any 
 on the occasion, " were condemned to other instance, find that such severity 
 death, the mutual consent of the par- was used towards troops who were 
 ties having introduced that new rule, simply come to surprise a town in the 
 in order to obviate dangers of this silence of the night. It would be quite 
 kind." (Grotius Hist, of the Disturb, another affair, if such an attempt were 
 in the Netherlands.) Since that time, made in a time of profound peace ; and 
 tho rule has been changed : at present, the Savoyards, who were taken in the 
 military men who attempt to surprise escalade of Geneva, deserved the pu- 
 a town in time of open war, are not, nishment of death which was inflicted 
 in case of being taken, treated in a dif- on them. [See page 321.J 
 ferent manner from other prisoners: 
 484
 
 OF FAITH BETWEEN ENEMIES. 374 
 
 employed for the purpose of surprising the French army at BOOK in. 
 Steinkirk. But, through the activity of the French general, CHAP.X. 
 and the courage of his troops, though the measures were so 
 artfully contrived, the success was not answerable.* 
 
 In the use of stratagems, we should respect not only the 
 faith due to an enemy, but also the rights of humanity, and 
 carefully avoid doing things the introduction of which would 
 be pernicious to mankind. Since the commencement of hos- 
 tilities between France and England, an English frigate is said 
 to have appeared off Calais, and made signals of distress, with 
 a view of decoying out some vessel, and actually seized a boat 
 and some sailors who generously came to her assistance. (167) 
 If the fact be true, that unworthy stratagem deserves a severe 
 punishment. It tends to damp a benevolent charity, which [ 375 ] 
 should be held so sacred in the eyes of mankind, and which is 
 so laudable even between enemies. Besides, making signals 
 of distress is asking assistance, and, by that very action, pro- 
 mising perfect security to those who give the friendly succour. 
 Therefore the action attributed to that frigate implies an 
 odious perfidy. 
 
 Some nations (even the Romans) for a long time professed 
 to despise every kind of artifice, surprise, or stratagem in war ; 
 and others went so far as to send notice of the time and place 
 they had chosen for giving battle, f In this conduct there 
 was more generosity than prudence. Such behaviour would, 
 indeed, be very laudable, if, as in the frenzy of duels, the only 
 business was to display personal courage". But in war, the ob- 
 ject is to defend our country, and by force to prosecute our 
 rights which are unjustly withheld from us : and the surest 
 means of obtaining our end are also the most commendable, 
 provided they be not unlawful and odious in themselves. j 
 The contempt of artifice, stratagem, and surprise, proceeds 
 often, as in the case of Achilles, from a noble confidence in 
 personal valour and strength; and it must be owned that 
 when we can defeat an enemy by open force, in a pitched bat- 
 tle, we may entertain a better-grounded belief that we have 
 subdued him and compelled him to sue for peace, than if we 
 had gained the advantage over him by surprise, as Livy 
 makes those generous senators say, who did not approve of the 
 insincere mode of proceeding which had been adopted towards 
 
 * M6moires de Feuquieres, torn. iii. which proved fatal to the Trojans : 
 
 P- 87. Ille non, inclosus equo Minerva 
 
 (167) See an instance of similar Sacra mentito, male feriatos 
 
 baseness, Baumann, 1 Rob. Rep. 245 ; Troas, et Isetam Priami chords 
 
 ante, 69, page 321. C. Falleret aulam ; 
 
 f This was the practice of the an- Sed palam captis gravis. 
 
 cient Gauls. See Livy. It is said of Hor. lib. iv. od. 6. 
 
 Achilles, that he was for fighting open- J Virg. JEn. ii. 390. 
 
 ly, and not of a disposition to conceal Tit. Liv. lib. xlii. cap. 47. 
 himself in the famous wooden horse, 
 
 2q2 485
 
 375 OF FAITH BETWEEN EMEMIES. 
 
 BOOK m. Perseus. Therefore, when plain and open courage can secure 
 CHAP - x - the victory, there are occasions when it is preferable to arti- 
 fice, because it procures to the state a greater and more per- 
 manent advantage. 
 
 179. Spies. The employment of spies is a kind of clandestine practice 
 or deceit in war. These find means to insinuate themselves 
 among the enemy, in order to discover the state of his affairs, 
 to pry into his designs, and then give intelligence to their em- 
 ployer. Spies are generally condemned to capital punish- 
 ment, and with great justice, since we have scarcely any other 
 means of guarding against the mischief they may do us( 155). 
 For this reason, a man of honour, who is unwilling to expose 
 himself to an ignominious death from the hand of a common 
 executioner, ever declines serving as a spy ; and, moreover, he 
 looks upon the office as unworthy of him, because it cannot be 
 performed without some degree of treachery. The sovereign, 
 therefore, has no right to require such a service of his sub- 
 jects, unless, perhaps, in some singular case, and that of the 
 376 ] highest importance. It remains for him to hold out the tempta- 
 tion of a reward, as an inducement to mercenary souls to en- 
 gage in the business. If those whom he employs make a 
 voluntary tender of their services, or if they be neither sub- 
 ject to, nor in any wise connected with the enemy, he may 
 unquestionably take advantage of their exertions, without any 
 violation of justice or honour. But is it lawful, is it honour- 
 able, to solicit the enemy's subjects to act as spies and betray 
 him ? To this question the following section will furnish an 
 answer. 
 
 180. Clan- It is asked, in general, whether it be lawful to seduce the 
 destine se- enemy's men, for the purpose of engaging them to transgress 
 auction of ^ tne i r ^ty by an i n f am ous treachery ? Here a distinction 
 * must ke ma ^ e between wnat is due to the enemy, notwith- 
 standing the state of warfare, and what is required by the in- 
 ternal laws of conscience and the rules of propriety. We may 
 lawfully endeavour to weaken the enemy by all possible 
 means ( 138), provided they do not affect the common safety 
 of human society, as do poison and assassination ( 155). Now, 
 in seducing a subject to turn spy, or the governor of a town 
 to deliver it up to us, we do not strike at the foundation of the 
 common safety and welfare of mankind. Subjects acting as 
 spies to an enemy, do not cause a fatal and unavoidable evil ; 
 it is possible to guard against them to a certain degree ; and 
 as to the security of fortresses, it is the sovereign's business 
 to be careful in the choice of the governors to whom he in- 
 trusts them. Those measures, therefore, are not contrary to 
 the external law of nations ; nor can the enemy complain of 
 them as odious proceedings. Accordingly, they are practised 
 in all wars. But are they honourable, and compatible with 
 the laws of a pure conscience ? Certainly no ; and of this 
 the generals themselves are sensible, as they are never heard 
 
 486
 
 OF FAITH BETWEEN ENEMIES. 376 
 
 to boast of having practised them. Seducing a subject to be- BOOK in. 
 tray his country, engaging a traitor to set fire to a magazine, CHAP, x. 
 tampering with the fidelity of a governor, enticing him, per- 
 suading him to deliver up the town intrusted to his charge, 
 is prompting such persons to commit detestable crimes. Is it 
 honourable to corrupt our most inveterate enemy, and tempt 
 him to the commission of a crime ? If such practices are at 
 all excusable, it can be only in a very just war, and when the 
 immediate object is to save our country, when threatened with 
 ruin by a lawless conqueror. On such an occasion (as it 
 should seem) the guilt of the subject or general who should 
 betray his sovereign when engaged in an evidently unjust 
 cause, would not be of so very odious a nature. He who him- 
 self tramples upon justice and probity, deserves in his turn to 
 feel the effects of wickedness and perfidy.* And if ever it is 
 excusable to depart from the strict rules of honour, it is against [ 377 ] 
 such an enemy and in such an extremity. The Romans, 
 whose ideas concerning the rights of war were, in general, so 
 pure and elevated, did not approve of such clandestine prac- 
 tices. They made no account of the consul Caepio's victory 
 over Viriatus, because it had been obtained by means of bri- 
 bery. Valerius Maximus asserts that it was stained with a 
 double perfidy f ; and another historian says that the senate 
 did not approve of it.J 
 
 It is a different thing merely to accept of the offers of a 181. Whe- 
 traitor. We do not seduce him : and we may take advantage ^^ of ~ 
 of his crime, while at the same time we detest it. Fugitives "^ T may 
 and deserters commit a crime against their sovereign ; yet we be accepted, 
 receive and harbour them by the rights of war, as the civil law 
 expresses it. If a governor sells himself, and offers for a sum 
 of money to deliver up his town, shall we scruple to take ad- 
 vantage of his crime, and to obtain without danger what we 
 have a right to take by force ? But, when we feel ourselves 
 able to succeed without the assistance of traitors, it is noble 
 
 * Xenophon very properly expresses quod eorum manibus interemptus est ; 
 the reasons which render treachery de- in Q. Servilio Csepione consule, quia is 
 testable, and which authorize us to re- sceleris hujus auctor, impunitate pro- 
 press it by other means than open missa, fuit, victoriamque non meruit, 
 force. Treachery," says he, is more sed emit. Lib. ix. cap. 6. Although 
 dreadful than open war, in proportion this instance seems to belong to an- 
 as it is more difficult to guard against other head (that of assassination), I 
 clandestine plots than against an open nevertheless quote it here, because it 
 attack : it is also more odious, because does not appear, from other authors, 
 men engaged in overt hostilities may that Csepio had induced Viriatus's sol- 
 again treat together, and come to a diers to assassinate him. Among others, 
 sincere reconciliation ; whereas nobody see Eutropius, lib. vi. cap. 8. 
 can venture to treat with or repose J Qu victoria, quia empta erat, a 
 any confidence in a man whom he has senatu non probata. Auctor de Viris 
 once found guilty of treachery." Hist. Illust. cap. 71. 
 Grsec. lib. ii. cap. 3. Transfugam jure belli recipimus. 
 
 t Viriati etiam csedes duplicem per- Digest. 1. xli. tit. 1, de adquir. Rer. 
 
 fidiae accusationem recepit; in amicis, Dom. leg. 51. 
 
 487
 
 377 OF FAITH BETWEEN ENEMIES. 
 
 BOOK in. to reject their offers with detestation. The Romans, in their 
 CHAP - * heroic ages, in those times when they used to display such 
 illustrious examples of magnanimity and virtue, constantly re- 
 jected with indignation every advantage presented to them 
 by the treachery of any of the enemy's subjects. They not 
 only acquainted Pyrrhus with the atrocious design of his phy- 
 sician, but also refused to take advantage of a less heinous 
 crime, and sent back to the Falisci, bound and fettered, a trai- 
 tor who had offered to deliver up the king's children.* 
 
 But when intestine divisions prevail among the enemy, we 
 may without scruple hold a correspondence with one of the 
 parties, and avail ourselves of the right which they think they 
 have to injure the opposite party. Thus, we promote our own 
 interests, without seducing any person, or being in anywise 
 partakers of his guilt. If we take advantage of his error, 
 this is doubtless allowable against an enemy. 
 
 182. De- Deceitful intelligence is that of a man who feigns to betray 
 tem^ence ^" 8 own party, with a view of drawing the enemy into a snare. 
 If he does this deliberately, and has himself made the first 
 [ 378 J overtures, it is treachery, and an infamous procedure : but an 
 officer, or the governor of a town, when tampered with by the 
 enemy, may, on certain occasions, lawfully feign acquiescence 
 to the proposal with a view to deceive the seducer : an insult 
 is offered to him in tempting his fidelity ; and to draw the 
 tempter into the snare, is no more than a just vengeance. By 
 this conduct he neither violates the faith of promises nor im- 
 pairs the happiness of mankind : for criminal engagements 
 are absolutely void, and ought never to be fulfilled ; and it 
 would be a fortunate circumstance if the promises of traitors 
 could never be relied on, but were on all sides surrounded 
 with uncertainties and dangers. Therefore a superior, on in- 
 formation that the enemy is tempting the fidelity of an officer 
 or soldier, makes no scruple of ordering that subaltern to 
 feign himself gained over, and to arrange his pretended 
 treachery so as to draw the enemy into an ambuscade. The 
 subaltern is obliged to obey. But when a direct attempt is 
 made to seduce the commander-in-chief, a man of honour 
 generally prefers, and ought to prefer, the alternative of ex- 
 plicitly and indignantly rejecting so disgraceful a proposal.f 
 
 * Eadem fide indicatum Pyrrho regi stance, received orders from him to 
 
 medicum vita; ejus insidiantem ; eudem feign acquiescence ; and, accordingly, 
 
 Faliscis vinctum traditum proditorem having made all their arrangements 
 
 liberorum regis. Tit.Liv.lib.xlii.cap.47. with the duke of Parma for the sur- 
 
 f When the duke of Parma was en- prisal of the fort, they gave notice of 
 gaged in the siege of Bergen-op-zoom, every particular to the governor. He, 
 two Spanish prisoners, who were con- in consequence, kept himself prepared 
 fined in a fort near the town, attempted to give a proper reception to the Spa- 
 to gain over a tavern-keeper, and an niards, who fell into the snare, and lost 
 English soldier, to betray that fort to near three thousand men on the occa- 
 the duke. These men, having ac- sion. Grotius, Hist, of the Disturb, in 
 quainted the governor with the circuin- the Netherlands, book i.
 
 OF THE SOVEREIGN WAGING UNJUST WAK. 378 
 
 CHAP. XI. 
 
 OF THE SOVEREIGN WHO WAGES AN UNJUST WAR. 
 
 HE who is engaged in war derives all his right from the ! . 83 ' An 
 justice of his cause. The unjust adversary who attacks or u ^i ust ^ 
 threatens him, who withholds what belongs to him, in a ^ght what- 
 word, who does him an injury, lays him under the necessity ever, 
 of defending himself, or of doing himself justice, by force of 
 arms ; he authorizes him in all the acts of hostility necessary 
 for obtaining complete satisfaction. Whoever therefore takes 
 up arms without a lawful cause, can absolutely have no right 
 whatever : every act of hostility that he commits is an act 
 of injustice. 
 
 He is chargeable with all the evils, all the horrors of the 184. Great 
 war : all the effusion of blood, the desolation of families, the & uilt / the 
 rapine, the acts of violence, the ravages, the conflagrations, ^cTunder- 
 are his works and his crimes. He is guilty of a crime against Jakes it. 
 the enemy, whom he attacks, oppresses, and massacres with- 
 out cause : he is guilty of a crime against his people, whom 
 he forces into acts of injustice, and exposes to danger, without 
 reason or necessity, against those of his subjects who are 379 ] 
 ruined or distressed by the war, who lose their lives, their 
 property, or their health, in consequence of it : finally, he is 
 guilty of a crime against mankind in general, whose peace he 
 disturbs, and to whom he sets a pernicious example. Shocking 
 catalogue of miseries and crimes ! dreadful account to be given 
 to the King of kings, to the common Father of men ! May 
 this slight sketch strike the eyes of the rulers of nations, of 
 princes and their ministers ! Why may not we expect some 
 benefit from it ? Are we to suppose that the great are wholly 
 lost to all sentiments of honour, of humanity, of duty, and of 
 religion ? And, should our weak voice, throughout the whole 
 succession of ages, prevent even one single war, how gloriously 
 would our studies and our labour be rewarded ! 
 
 He who does an injury is bound to repair the damage, or to 185. His 
 make adequate satisfaction if the evil be irreparable, and even obligations, 
 to submit to punishment, if the punishment be necessary, either 
 as an example, or for the safety of the party offended, and for 
 that of human society. In this predicament stands a prince 
 who is the author of an unjust war. He is under an obliga- 
 tion to restore whatever he has taken, to send back the 
 prisoners at his own expense, to make compensation to the 
 enemy for the calamities and losses he has brought on him, 
 to reinstate ruined families, to repair, if it were possible, the 
 loss: f a father, a son, a husband.
 
 379 OF THE SOVEREIGN WAGING UNJUST WAR. 
 
 BOOK in. But how can he repair so many evils ? Many are in their 
 CHAP, xi. own nature irreparable. And as to those which may he com- 
 186. Dif- pensated by an equivalent, where shall the unjust warrior 
 ficulty of re- find means to furnish an indemnification for all his acts of vio- 
 ?nTury g hl hC lence ? The prince's private property will not be sufficient to 
 has done, answer the demands. Shall* he give away that of his sub- 
 jects ? It does not belong to him. Shall he sacrifice the na- 
 tional lands, a part of the state ? But the state is not his 
 patrimony (Book I. 91) : he cannot dispose of it at will. 
 And, although the nation be, to a certain degree, responsible 
 for the acts of her ruler, yet (exclusive of the injustice of 
 punishing her directly for faults of which she is not guilty), 
 if she is responsible for her sovereign's acts, that responsibility 
 only regards other nations, who look to her for redress (Book I. 
 40, Book II. 81, 82) : but the sovereign cannot throw 
 upon her the punishment due to his unjust deeds, nor despoil 
 her in order to make reparation for them. And, were it even 
 in his power, would this wash away his guilt and leave him a 
 clear conscience ? Though acquitted in the eyes of the enemy, 
 would he be so in the eyes of his people ? It is a strange kind 
 of justice which prompts a man to make reparation for his 
 own misdeeds at the expense of a third person : this is no more 
 than changing the object of his injustice. Weigh all these 
 things, ye rulers of nations ! and, when clearly convinced that 
 [ 380 ] an unjust war draws you into a multitude of iniquities which 
 all your power cannot repair, perhaps you will be less hasty 
 to engage in it. 
 
 187. Whe- The restitution of conquests, of prisoners, and of all pro- 
 ther the na- perty that still exists in a recoverable state, admits of no 
 militar^ Ire doubt wlien the in j ustice of tne war is acknowledged. The 
 bound to nation in her aggregate capacity, and each individual parti- 
 any thing, cularly concerned, being convinced of the injustice of their 
 possession, are bound to relinquish it, and to restore every 
 thing which they have wrongfully acquired. But, as to the 
 reparation of any damage, are the military, the generals, of- 
 ficers and soldiers, obliged in conscience to repair the injuries 
 which they have done, not of their own will, but as instru- 
 ments in the hands of their sovereign ? I am surprised that 
 the judicious Grotius should, without distinction, hold the af- 
 firmative.* It is a decision which cannot be supported, ex- 
 cept in the case of a war so palpably and indisputably unjust, 
 as not to admit a presumption of any secret reason of state 
 that is capable of justifying it, a case in politics which is 
 nearly impossible. On all occasions susceptible of doubt, the 
 whole nation, the individuals, and especially the military, are 
 to submit their judgment to those who hold the reins of go- 
 vernment, to the sovereign : this they are bound to do by 
 the essential principles of political society, and of govern- 
 
 * De Jure Belli et Pacis, lib. iii. cap. x.
 
 OF THE EFFECTS OF REGULAR WAR. 380 
 
 ment. What would be the consequence, if, at every step of BOOK in. 
 the sovereign, the subjects were at liberty to weigh the justice CHAP.XI. 
 of his reasons, and refuse to march to a war which might to 
 them appear unjust ? It often happens that prudence will 
 not permit a sovereign to disclose all his reasons. It is the 
 duty of subjects to suppose them just and wise, until clear 
 and absolute evidence tells them the contrary. When, there- 
 fore, under the impression of such an idea, they have lent 
 their assistance in a war which is afterwards found to be unjust, 
 the sovereign alone is guilty : he alone is bound to repair the 
 injuries. The subjects, and in particular the military, are ^ 
 
 innocent : they have acted only from a necessary obedience. 
 They are bound, however, to deliver up what they have ac- 
 quired in such a war, because they have no lawful title to 
 possess it. This I believe to be the almost unanimous opinion 
 of all honest men, and of those officers who are most distin- 
 guished for honour and probity. Their case, in the present 
 instance, is the same as that of all those who are the executors 
 of the sovereign's orders. Government would be impracticable 
 if every one of its instruments was to weigh its commands, 
 and thoroughly canvass their justice before he obeyed them. 
 But, if they are bound by a regard for the welfare of the state 
 ^to suppose the sovereign's orders just, they are not responsible 
 for them. 
 
 CHAP. XII. [ 381 ] 
 
 OF THE VOLUNTARY LAW OF NATIONS, AS IT REGARDS THE CHAP. xii. 
 EFFECTS OF REGULAR WARFARE, INDEPENDENTLY OF THE ~~ 
 JUSTICE OF THE CAUSE. 
 
 ALL the doctrines we have laid down in the preceding 188. Na- 
 chapter are evidently deduced from sound principles, from ti ^ B not 
 the eternal rules of justice : they are so many separate articles "c e 7he 
 of that sacred law, which nature, or the Divine Author of Lwofnar 
 nature, has prescribed to nations. He alone whom justice ture against 
 and necessity have armed, has a right to make war ; he alone each otlier ' 
 is empowered to attack his enemy, to deprive him of life, and 
 wrest from him his goods and possessions. Such is the deci- 
 sion of the necessary law of nations, or of the law of nature, 
 which nations are strictly bound to observe (Prelim. 7) : it 
 is the inviolable rule that each ought conscientiously to follow. 
 But, in the contests of nations and sovereigns who live together 
 in a state of nature, how can this rule be enforced ? They 
 acknowledge no superior. Who then shall be judge between 
 them, to assign to each his rights and obligations, to say to 
 the one, " You have a right to take up arms, to attack your 
 
 491
 
 381 OF THE VOLUNTARY LAW OF NATIONS. 
 
 BOOK in. enemy, and subdue him by force ;" and to the other, " Every 
 CHAP, xn. ac t O f hostility that you commit will be an act of injustice ; 
 your victories will be so many murders, your conquests rapines 
 and robberies?" Every free and sovereign state has a right 
 to determine, according to the dictates of her own conscience, 
 what her duties require of her, and what she can or cannot 
 do with justice (Prelim. 16). If other nations take upon 
 themselves to judge of her conduct, they invade her liberty, 
 and infringe her most valuable rights (Prelim. 15) : and, 
 moreover, each party, asserting that they have justice on their 
 own side, will arrogate to themselves all the rights of war, 
 and maintain thai, their enemy has none, that his hostilities 
 are so many acts of robbery, so many infractions of the law 
 of nations, in the punishment of which all states should unite. 
 The decision of the controversy, and of the justice of the 
 cause, is so far from being forwarded by it, that the quarrel 
 will become more bloody, more calamitous in its effects, and 
 also more difficult to terminate. Nor is this all : the neutral 
 nations themselves will be drawn into the dispute, and involved 
 in the quarrel. If an unjust war cannot, in its effect, confer 
 any right, no certain possession can be obtained of any thing 
 taken in war, until some acknowledged judge (and there is 
 none such between nations) shall have definitively pronounced 
 [ 382 ] concerning the justice of the cause : and things so acquired 
 will ever remain liable to be claimed, as property carried off 
 by robbers. 
 
 189. Why Let us then leave the strictness of the necessary law of 
 they ought nature to the conscience of sovereigns ; undoubtedly they are 
 to admit never allowed to deviate from it. But, as to the external 
 tar/lavTof en ~ ects of the law among men, we must necessarily have re- 
 nations, course to rules that shall be more certain and easy in the 
 application, and this for the very safety and advantage of the 
 great society of mankind. These are the rules of the volun- 
 tary law of nations (Prelim. 21). The law of nature, whose 
 object it is to promote the welfare of human society, and to 
 protect the liberties of all nations, which requires that the 
 affairs of sovereigns should be brought to an issue, and their 
 quarrels determined and carried to a speedy conclusion, that 
 law, I say, recommends the observance of the voluntary law 
 of nations, for the common advantage of states, in the same 
 manner as it approves of the alterations which the civil law 
 makes in the rules of the law of nature, with a view to render 
 them more suitable to the state of political society, and more 
 easy and certain in their application. Let us, therefore, 
 apply to the particular subject of war the general observation 
 made in our Preliminaries ( 28) a nation, a sovereign, when 
 deliberating on the measures he is to pursue in order to fulfil 
 his duty, ought never to lose sight of the necessary law, whose 
 obligation on the conscience is inviolable : but in examining 
 what he may require of other states, he ought to pay a defer- 
 
 492
 
 OF THE EFFECTS OF REGULAR WAR. 382 
 
 ence to the voluntary law of nations, and restrict even his BOOK in. 
 just claims by the rules of that law, whose maxims have for CHAP - xri - 
 their object the happiness and advantage of the universal 
 society of nations. Though the necessary law be the rule 
 which he invariably observes in his own conduct, he should 
 allow others to avail themselves of the voluntary law of 
 nations. 
 
 The first rule of that law, respecting the subject under 190. Re- 
 consideration, is, that regular war, as to its effects, is to be e ular . war 
 accounted just on both sides. This is absolutely necessary, ^g-^* 8 ^ to 
 as we have just shown, if people wish to introduce any order, be Account- 
 any regularity, into so violent an operation as that of arms, ed just on 
 or to. set any bounds to the calamities of which it is produc- botn sides - 
 tive, and leave a door constantly open for the return of peace. 
 It is even impossible to point out any other rule of conduct 
 to be observed between nations, since they acknowledge no 
 superior judge. 
 
 Thus, the rights founded on the state of war, the lawfulness 
 of its effects, the validity of the acquisitions made by arms, 
 do not, externally and between mankind, depend on the justice 
 of the cause, but on the legality of the means in themselves, 
 that is, on every thing requisite to constitute a regular war. 
 If the enemy observes all the rules of regular warfare (see 
 Chap. III. of this Book), we are not entitled to complain of 
 him as a violator of the law of nations. He has the same 
 pretensions to justice as we ourselves have ; and all our re- 
 source lies in victory or an accommodation. 
 
 Second rule. The justice of the cause being reputed equal 191. 
 between two enemies, whatever is permitted to the one in virtue Whatever w 
 of the state of war, is also permitted to the other. Accord- ^ mi ^f 
 ingly, no nation, under pretence of having justice on her side, s" e to t h e ' 
 ever complains of the hostilities of her enemy, while he con- other. 
 fines them within the limits prescribed by the common laws [ 383 ] 
 of war. We have, in the preceding chapters, treated of what 
 is allowable in a just war. It is precisely that, and no more, 
 which the voluntary law equally authorizes in both parties. 
 That law puts things between both on a parity, but allows to 
 neither what is in itself unlawful : it can never countenance 
 unbridled licentiousness. If, therefore, nations transgress 
 those bounds, if they carry hostilities beyond what the inter- 
 nal and necessary law permits in general for the support of a 
 just cause, far be it from us to attribute these excesses to the 
 voluntary law of nations : they are solely imputable to a 
 depravation of manners, which produces an unjust and barba- 
 rous custom. Such are those horrid enormities sometimes 
 committed by the soldiery in a town taken by storm. 
 
 3. We must never forget that this voluntary law of nations, 192. The 
 which is admitted only through necessity, and with a view to wiuntaiy 
 avoid greater evils ( 188, 189), does not, to him who takes l 
 up arms in an unjust cause, give any real right that is capable 
 
 2R 493
 
 383 OF THE VOLUNTARY LAW OF NATIONS. 
 
 BOOK in. of justifying his conduct and acquitting his conscience, but 
 L_ merely entitles him to the benefit of the external effect of the 
 
 impunity to law, and to impunity among mankind. This sufficiently 
 him who appears from what we have said in establishing the voluntary 
 uiX vTar * aw ^ nat i ns> ^ he sovereign, therefore, whose arms are not 
 sanctioned by justice, is not the less unjust, or less guilty of 
 violating the sacred law of nature, although that law itself 
 (with a view to avoid aggravating the evils of human society 
 by an attempt to prevent them) requires that he be allowed 
 to enjoy the same external rights as justly belong to his 
 enemy. In the same manner, the civil law authorizes a debtor 
 to refuse payment of his debts in a case of prescription : but 
 he then violates his duty : he takes advantage of a law which 
 was enacted with a view to prevent the endless increase of 
 lawsuits ; but his conduct is not justifiable upon any grounds 
 of genuine right. 
 
 From the unanimity that in fact prevails between states in 
 observing the rules which we refer to the voluntary law of 
 nations, Grotius assumes for their foundation an actual con- 
 sent on the part of mankind, and refers them to the arbitrary 
 law of nations. But, exclusive of the difficulty which would 
 often occur in proving such agreement, it would be of no 
 validity except against those who had formerly entered into 
 it. If such an engagement existed, it would belong to the 
 conventional law of nations, which must be proved by history, 
 not by argument, and is founded on facts, not on principles. 
 In this work we lay down the natural principles of the law of 
 nations. We deduce them from nature itself; and what we 
 call the voluntary law of nations consists in rules of conduct 
 and of external right, to which nations are, by the law of 
 nature, bound to consent ; so that we are authorized to pre- 
 sume their consent, without seeking for a record of it in the 
 [ 384 ] annals of the world ; because, even if they had not given it, 
 the law of nature supplies their omission, and gives it for 
 them. In this particular, nations have not the option of 
 giving or withholding their consent at pleasure : the refusal 
 to give it would be an infringement of the common rights of 
 nations (Prelim. 21). 
 
 This voluntary law of nations, thus established, is of very 
 extensive use, and is far from being a chimera, an arbitrary 
 or groundless fiction. It flows from the same source, and 
 is founded on the same principles, with the natural and neces- 
 sary law. For what other reason does nature prescribe such 
 and such rules of conduct to men, except because those rules 
 are necessary to the safety and welfare of mankind ? But 
 the maxims of the necessary law of nations are founded imme- 
 diately on the nature of things, and particularly on that of 
 man, and of political society. The voluntary law of nations 
 supposes an additional principle, the nature of the great 
 society of nations, and of their mutual intercourse. The 
 
 494
 
 OP ACQUISITIONS BY WAR, ETC. 384 
 
 necessary law enjoins to nations what is absolutely indispen- BOOK m 
 sable, and what naturally tends to their perfection and common CHAP, xir. 
 happiness. The voluntary law tolerates what cannot be 
 avoided without introducing greater evils. 
 
 CHAP. XIII. 
 
 OF ACQUISITIONS BY WAR, AND PARTICULARLY OF CON- CHAP, xm. 
 QUESTS. 
 
 IF it be lawful to carry off things belonging to an enemy, 193. How 
 with a view of weakening him ( 160), and sometimes of pu- war " a 
 nishing him ( 162), it is no less lawful in a just war to appro- ^^f^ 
 priate them to our own use, by way of compensation, which 
 the civilians term expletio juris ( 161). They are retained 
 as an equivalent for what is due by the enemy, for the expenses 
 and damages which he has occasioned, and even (when there 
 is cause to punish him) as a commutation for the punishment 
 he has deserved. For, when I cannot obtain the individual 
 thing which belongs or is due to me, I have a right to an 
 equivalent, which, by the rules of expletive justice, and in 
 moral estimation, is considered as the thing itself. Thus, 
 according to the law of nature, which constitutes the neces- 
 sary law of nations, war, founded on justice, is a lawful mode 
 of acquisition. 
 
 But that sacred law does not authorize even the acquisitions 194. Mea- 
 ns ade in a just war, any farther than as they are approved by s y re of tte 
 justice, that is to say, no farther than is requisite to obtain n .^ ht u 
 complete satisfaction in the degree necessary for accomplish- glv 
 ing the lawful ends we have just mentioned. An equitable 
 conqueror, deaf to the suggestions of ambition and avarice, 
 will make a just estimate of what is due to him, that is to 
 say, of the thing which has been the subject of the war (if the 
 thing itself is no longer recoverable), and of the damages and [ 385 ] 
 expenses of the war, and will retain no more of the enemy's 
 property than what is precisely sufficient to furnish the equiva- 
 lent. But if he has to do with a perfidious, restless, and 
 dangerous enemy, he will, by way of punishment, deprive him 
 of some of his towns or provinces, and keep them to serve as 
 a barrier to his own dominions. Nothing is more allowable 
 than to weaken an enemy who has rendered himself suspected 
 and formidable. The lawful end of punishment is future secu- 
 rity. The conditions necessary for rendering an acquisition, 
 made by arms, just and irreproachable before God and our 
 own conscience, are these, justice in the cause, and equity 
 in the measure of the satisfaction. 
 
 495
 
 385 
 
 OP ACQUISITIONS BY WAR, ETC. 
 
 BOOK in. But nations cannot, in their dealings with each other, insist 
 CHAP, xin. on this rigid justice. By the rules of the voluntary law of 
 195. Rules nations, every regular war is on both sides accounted just, as 
 of the vo- to its effects ( 190) ; and no one has a right to judge a nation 
 luntary law respecting the unreasonableness of her claims, or what she 
 o nations. Chinks necessary for her own safety (Prelim. 21). Every 
 acquisition, therefore, which has been made in regular war- 
 fare, is valid according to the voluntary law of nations, inde- 
 pendently of the justice of the cause and the reasons which 
 may have induced the conqueror to assume the property of 
 what he has taken. Accordingly, nations have ever esteemed 
 conquest a lawful title ; and that title has seldom been dis- 
 puted, unless where it was derived from a war not only unjust 
 in itself, but even destitute of any plausible pretext. 
 196. Ac- The property of movable effects is vested in the enemy 
 quisition of f rom the moment they come into his power ; and if he sells 
 property t ^ iem to neutra l nations, the former proprietor is not entitled 
 (168) to claim them. But such things must be actually and truly 
 
 (168) See further, as to the effect of 
 capture, as to movables and immovables, 
 and the doctrine of postliminium, and 
 the principle on which it is in general 
 founded, post, 392, 204, 205 ; and 
 the other authorities and modern deci- 
 sions, Marten's L. N. 290293; 1 
 Chitty's Commercial Law, 414 435; 
 and Id. Index, tit. Postliminium. 
 
 As to movables captured in a land 
 war, some writers on the law of nations 
 state it to be merely requisite that the 
 property shall have been twenty-four 
 hours in the enemy's power, after which 
 they contend, that the right of postli- 
 minium is completely divested, so that 
 immediately after the expiration of that 
 time, they may be alienated to neutrals, 
 as indefeasible property. Others con- 
 tend, that the property must have been 
 brought infra prcesidia, that is, within 
 the camps, towns, ports, or fleets of the 
 enemy : and others have drawn lines 
 of an arbitrary nature. Marten's L. N. 
 290-1 ; 2 Wooddeson's Vin. L. 444, 
 34. 
 
 With respect to maritime captures, a 
 more absolute and certain species of 
 possession has been required. In the 
 case of Flad Oyen, 1 Rob. Rep. 134; 
 Atcheson's Rep. 8, n. 9 ; and 8 Term 
 Rep. 270, in notes, Sir Wm. Scott said, 
 " By the general practice of the law of 
 nations, a sentence of condemnation is at 
 present deemed generally necessary; 
 and a neutral purchaser in Europe, 
 during war, does look to the legal sen- 
 tence of condemnation as one of the 
 
 title-deeds of the ship, if he buys a prize- 
 vessel. I believe there is no instance 
 in which a man, having purchased a 
 prize- vessel of a belligerent, has thought 
 himself secure in making that purchase, 
 merely because that ship had been in 
 the enemy's possession twenty-four 
 hours, or carried infra pr&sidia. At 
 any rate, the rule of condemnation is 
 the general rule applied by England." 
 So that, by the general law of nations, 
 if a vessel be retaken before condemna- 
 tion, by any ship of the nation of which 
 the original owner is a subject, although 
 even four years after the capture, he 
 has a right to have the same restored 
 to him, subject to his paying certain 
 salvage to the re-captor. See Goss and 
 Withers, 2 Burr. 683 ; Constant Mary, 
 3 Rob. Rep. 97 ; The Huldah, Id. 235 ; 
 jlssievedo v. Cambridge, 10 Mod. 79. 
 And such sentence of condemnation 
 must also have been pronounced by a 
 court of competent jurisdiction, and in 
 the country either of the enemy him- 
 self, or of some ally, and not in a neu- 
 tral country. Flad Oyen, 1 Rob. Rep. 
 134; Havelock \. Rockwood, Atcheson's 
 Rep. 8, n. 9. 
 
 But if, after the time of the enemy's 
 transferring his prize to a neutral, a 
 peace be concluded between that enemy 
 and the state from whose subject the 
 prize was taken, then the transfer to 
 the neutral becomes valid and perfect, 
 even though there was no legal con 
 demnation, for, as observed by Vattel 
 the right of postliminium no longei 

 
 OF ACQUISITIONS BY WAR, ETC. 385 
 
 in the enemy's power, and carried to a place of safety. Sup- BOOK m. 
 pose a foreigner, coming into our country, buys a-portion of CHAP, xm. 
 the booty which a party of enemies have just taken from us : 
 our men, who are in pursuit of this party, may very justly 
 seize on the booty which that foreigner was over precipitate 
 in buying. On this head, Grotius quotes from De Thou the 
 instance of the town of Lierre in Brabant, which having been 
 captured and recaptured on the same day, the booty taken 
 from the inhabitants was restored to them, because it had not 
 been twenty-four hours in the enemy's hands.* This space 
 of twenty-four hours, together with the practice observed at 
 sea,f is an institution of the law of nations established by 
 agreement or custom, and is even a civil law in some states. 
 The natural reason of the conduct adopted towards the in- 
 habitants of Lierre is, that the enemy being taken as it were 
 in the fact, and before they had carried off the booty, it was 
 not looked upon as having absolutely become their property, 
 or been lost to the inhabitants. Thus, at sea, a ship taken [ 386 ] 
 by the enemy may be retaken and delivered by other ships 
 of her own party, as long as she has not been carried into 
 some port, or into the midst of a fleet : her fate is not decided, 
 nor is the owner's property irrecoverably lost, until the ship 
 be in a place of safety with regard to the enemy who has 
 taken her, and entirely in his power. But the ordinances of 
 every state may make different regulations on this head 
 between the citizens,! with a view either to prevent disputes, 
 
 exists after the conclusion of peace, salvage to the re-captor. 1 Chitty's 
 And see Sir W. Scott's decision on that Com. L. 434 6 ; and see Franklin, 
 point, in Schooner Sop/tie, 6 Rob. Rep. 4 Rob. Rep. 147; 1 Edward's Rep. 68; 
 142. San Francisco, 1 Edward's Rep. 279 ; 
 In cases arising between British sub- the Two Friends, 1 Rob. Rep. 271 ; 
 jects with one another, and also in Cornu v. Blackburne, Dougl. 648. {Lu- 
 cases arising between such subjects ler v. The Resolution, 2 Ball. Rep. 1.} 
 and those of her allies, peculiar modifi- In the absence of express stipulations 
 cations of the general law of nations with allies, Sir Wm. Scott observed, " I 
 were introduced or acknowledged by understand that the actual rule of the 
 Great Britain. Thus, it was established English maritime law is this : viz., that 
 by several acts of parliament (13 Geo. the maritime law of England having 
 2, c. 4; 17 Geo. 2, c. 34; 19 Geo. 2, adopted a most liberal rule of restitu- 
 c. 34; 43 Geo. 3, c. 160; and see tion with respect to the re-captured 
 Hamilton v. Mendes, 2 Burr. 1198; property of its own subjects, gives the 
 1 Bla. Rep. 27), that the maritime right benefit of that rule to its allies, till it 
 of postliminium shall subsist even to appears that they act towards British 
 the end of the war ; and, therefore, the property on a less liberal principle. In 
 ships or goods of the subjects of this such a case it adopts their rule, and 
 country, taken at sea by an enemy, treats them according to their own 
 and afterwards retaken, even at any measure of justice." Santa Cruz, 
 indefinite period of time, and whether 1 Rob. Rep. 49. C. 
 before or after sentence of condemna- * Grotius, de Jure Belli et Pacis, 
 tion, are in general to be restored to lib. iii. cap. vi. iii. n. vii. 
 the original proprietors, but subject to f See Grotius, ibid, and in the text, 
 certain specified exceptions, and, in j Grotius, ibid, 
 general, also subject to the payment of 
 
 63 2 R 2 497
 
 386 OP ACQUISITIONS BY WAR, ETC. 
 
 BOOK in. or to encourage armed vessels to retake merchant ships that 
 CHAP, xiii. have fallen, into the enemy's hands. 
 
 The justice or injustice of the cause does not here become 
 an object of consideration. There would be no stability in 
 the affairs of mankind, no safety in trading with nations 
 engaged in war, if we were allowed to draw a distinction 
 between a just and an unjust war, so as to attribute lawful 
 effects to the one which we denied to the other. It would 
 be opening a door to endless discussions and quarrels. This 
 reason is of such weight, that, on account of it, the effects of 
 a public war, at least with regard to movables, have been 
 allowed to expeditions which deserved no other name than that 
 of predatory enterprises, though carried on by regular armies. 
 When, after the wars of the English in France, the grandes 
 compagnies ranged about Europe, sacking and pillaging wher- 
 ever they came, none of the sufferers was ever known to claim 
 the booty which those plunderers had carried off and sold. 
 At present, it would be in vain to claim a ship taken by the 
 Barbary corsairs, and sold to a third party, or retaken from 
 the captors ; though it is very improperly that the piracies of 
 those barbarians can be considered as acts of regular war. 
 We here speak of the external right : the internal right and 
 the obligations of conscience undoubtedly require, that we 
 should restore to a third party the property we recover from 
 an enemy who had despoiled him of it in an unjust war, 
 provided he can recognise that property, and will defray the 
 expenses we have incurred in recovering it. Grotius quotes 
 many instances of sovereigns and commanders who have 
 generously restored such booty, even without requiring any 
 thing for their trouble or expense.* But such conduct is 
 
 Pursued only in cases where the booty has been recently taken, 
 t would be an impracticable task, scrupulously to seek out 
 
 the proprietors of what has been captured a long time back ; 
 
 and moreover they have, no doubt, relinquished all their right 
 
 to things which they had no longer any hope of recovering. 
 
 Such is the usual mode of thinking with respect to captures 
 
 in war, which are soon given up as irrecoverably lost. 
 197. Ac- Immovable possessions, lands, towns, provinces, &c., become 
 quisition of the property of the enemy who makes himself master of them : 
 ^orcon- CS ' k u t ^ ^ s on ty kj the treaty of peace, or the entire submission 
 quest. (169) an( l extinction of the state to which those towns and provinces 
 
 belonged, that the acquisition is completed, and the property 
 
 becomes stable and perfect. 
 
 198. How Thus, a third party cannot safely purchase a conquered 
 to transfer town or province, till the sovereign from whom it was taken 
 i^em va- ^as renounced it by a treaty of peace, or has been irretrievably 
 
 subdued, and has lost his sovereignty : for, while the war con- 
 
 * Grotius, lib. iii. cap. xvi. post, chap. xiv. ; and the case of Breda 
 
 (169) See further as to postliminium, Lust, 5 Bob. Rep. 233 251. C. 
 498
 
 OF ACQUISITIONS BY WAR, ETC. 387 
 
 tinues, while the sovereign h$ s still hopes of recovering his BOOK m. 
 possessions by arms, is a neutral prince to come and deprive CHAP, xm. 
 him of the opportunity by purchasing that town or province 
 from the conqueror ? The original proprietor cannot forfeit 
 his rights by the act of a third person ; and if the purchaser 
 be determined to maintain his purchase, he will find himself 
 involved in the war. Thus, the king of Prussia became a 
 party with the enemies of Sweden, by receiving Stettin from 
 the hands of the king of Poland and the czar, under the title 
 of sequestration.* But, when a sovereign has, by a definitive 
 treaty of peace, ceded a country to the conqueror, he has 
 relinquished all the right he had to it ; and it were absurd 
 that he should be allowed to demand the restitution of that 
 country by a subsequent conqueror, who wrests it from the 
 former, or by any other prince, who has purchased it, or re- 
 ceived it in exchange, or acquired it by any title whatever. 
 
 The conqueror, who takes a town or province from his 199. Con- 
 enemy, cannot justly acquire over it any other rights than dit i ns on 
 such as belonged to the sovereign against whom he has taken 
 up arms. War authorizes him to possess himself of what 
 belongs to his enemy : if he deprives him of the sovereignty 
 of that town or province, he acquires it such as it is, with all 
 its limitations and modifications. Accordingly, care is usually 
 taken to stipulate, both in particular capitulations and in 
 treaties of peace, that the towns and countries ceded shall 
 retain all their liberties, privileges, and immunities. And 
 why should they be deprived of them by the conqueror, on 
 account of his quarrel with their sovereign ? Nevertheless, 
 if the inhabitants have been personally guilty of any crime 
 against him, he may, by way of punishment, deprive them of 
 their rights and privileges. This he may also do if the 
 inhabitants have taken up arms against him, and have thus 
 directly become his enemies. In that case, he owes them no 
 more than what is due from a humane and equitable conqueror 
 to his vanquished foes. Should he purely and simply incor- 
 porate them with his former states, they will have no cause of 
 complaint. 
 
 Hitherto I evidently speak of a city or a country which is not 
 simply an integrant part of a nation, or which does not fully 
 belong to a sovereign, but over which that nation or that 
 sovereign has certain rights. If the conquered town or pro- 
 vince fully and perfectly constituted a part of the domain of 
 a nation or sovereign, it passes on the same footing into the 
 power of the conqueror. Thenceforward united with the new 
 state to which it belongs, if it be a loser by the change, 
 that is a misfortune which it must wholly impute to the chance 
 of war. Thus, if a town which made part of a republic or a [ 388 ] 
 limited monarchy, and enjoyed a right of sending 'deputies to 
 
 * By the treaty of Schwedt, October 6, 1713. 
 
 499
 
 388 OF ACQUISITIONS BY WAR, ETC. 
 
 BOOK in. the supreme council or the general assembly of the states, be 
 CHAP, xin. justly conquered by an absolute monarch, she must never more 
 think of such privileges : they are what the constitution of the 
 new state to which she is annexed does not permit. 
 200. Lands In the conquests of ancient times, even individuals lost their 
 of private lands. Nor is it matter of surprise that in the first ages of 
 persons. Rome such a custom should have prevailed. The wars of that 
 era were carried on between popular republics and commu- 
 nities. The state possessed very little, and the quarrel was 
 in reality the common cause of all the citizens. But at pre- 
 sent war is less dreadful in its consequences to the subject : 
 matters are conducted with more humanity : one sovereign 
 makes war against another sovereign, and not against the 
 unarmed citizens. The conqueror seizes on the possessions 
 of the state, the public property, while private individuals are 
 permitted to retain theirs. They suffer but indirectly by the 
 war ; and the conquest only subjects them to a new master. 
 201. Con- But if the entire state be conquered, if the nation be sub- 
 quest of the dued, in what manner can the victor treat it, without trans- 
 (170) StatC ' S ress ^ n S ^ e bounds of justice ? What are his rights over the 
 conquered country ? Some have dared to advance this mon- 
 strous principle, that the conqueror is absolute master of his 
 conquest, that he may dispose of it as his property, that 
 he may treat it as he pleases, according to the common expres- 
 sion of treating a state as a conquered country ; and hence 
 they derive one of the sources of despotic government. But, 
 disregarding such writers, who reduce men to the state of 
 transferable goods or beasts of burthen, who deliver them 
 up as the property or patrimony of another man, let us 
 argue on principles countenanced by reason and conformable 
 to humanity. 
 
 The whole right of the conqueror is derived from justifiable 
 self-defence ( 3, 26, 28), which comprehends the support 
 and prosecution of his rights. When, therefore, he has totally 
 subdued a hostile nation, he undoubtedly may, in the first 
 place, do himself justice respecting the object which had given 
 rise to the war, and indemnify himself for the expenses and 
 damages he has sustained by it : he may, according to the 
 exigency of the case, subject the nation to punishment, by 
 way of example : he may even, if prudence so require, render 
 
 (170) When a country has been Trials, p. 322 ; and Cowper, 205 ; and 
 conquered by the British, or any other Fabrigas v. Moslyn, Cowp. Rep. 165. 
 arms, and having become a dominion But statutes previously passed do not 
 of the king in right of his crown, the in general extend to a conquered coun- 
 conquered inhabitants, once received try; see 2 Merivale's Rep. 156; 4 Mo- 
 by the conqueror, become his subjects, dern Rep. 222 ; 1 Chitty's Com. L. 
 and are universally to be regarded in 639, 640; 1 Bla. Com. 102 3. As 
 that light, and not as enemies or aliens, to the application of the laws of Eng- 
 Elphinttone v. Bedreechwid, Knapp's land to her foreign possessions, see 
 Rep. 338 ; Campbell v. Hall, 23 State Gardiner v. Fell, 1 Jac. & Walk. 27 ; 
 
 and Id. 30, n. (a). -C. 
 500
 
 OP ACQUISITIONS BY WAR, ETC. 388 
 
 "her incapable of doing mischief with the same ease in future. BOOK m. 
 But, for the attainment of these different objects, he is to CHAP, xm. 
 prefer the gentlest methods, still bearing in mind that the 
 doing of harm to an enemy is no further authorized by the 
 law of nature, than in the precise degree which is necessary 
 for justifiable self-defence, and reasonable security for the 
 time to come. Some princes have contented themselves with 
 imposing a tribute on the conquered nation, others, with 
 depriving her of some of her rights, taking from her a pro- 
 vince, or erecting fortresses to keep her in awe : others, again, 
 confining their quarrel to the sovereign alone, have left the [ 389 ] 
 nation in the full enjoyment of all their rights, only setting 
 over her a new sovereign of their own appointment. 
 
 But if the conqueror thinks proper to retain the sovereignty 
 of the conquered state, and has a right to retain it, the same 
 principles must also determine the manner in which he is to 
 treat that state. If it is against the sovereign alone that he 
 has just cause of complaint, reason plainly evinces that he 
 acquires no other rights by his conquest than such as belonged 
 to the sovereign whom he has dispossessed : and, on the sub- 
 mission of the people, he is bound to govern them according 
 to the laws of the state. If the people do not voluntarily 
 submit, the state of war still subsists. 
 
 A conqueror who has taken up arms, not only against the 
 sovereign, but against the nation herself, and whose intention 
 it was to subdue a fierce and savage people, and once for all 
 to reduce an obstinate enemy, such a conqueror may with 
 justice lay burthens on the conquered nation, both as a com- 
 pensation for the expenses of the war, and as a punishment. 
 He may, according to the degree of indocility apparent in their 
 disposition, govern them with a tighter rein, so as to curb and 
 subdue their impetuous spirit : he may even, if necessary, 
 keep them for some time in a kind of slavery. But this 
 forced condition ought to cease from the moment the danger 
 is over, the moment the conquered people are become citi- 
 zens : for then the right of conquest is at an end, so far as 
 relates to the pursuit of those rigorous measures, since the 
 conqueror no longer finds it necessary to use extraordinary 
 precautions for his own defence and safety. Then at length 
 every thing is to be rendered conformable to the rules of a 
 wise government and the duties of a good prince. 
 
 When a sovereign, arrogating to himself the absolute dis- 
 posal of a people whom he has conquered, attempts to reduce 
 them to slavery, he perpetuates the state of warfare between 
 that nation and himself. The Scythians said to Alexander 
 the Great, " There is never any friendship between the master 
 and slave : in the midst of peace the rights of war still subsist."* 
 
 * Inter dominum et servum nulla amicitia est ; etiam in pace, belli tamen 
 jura servantur. Q. Curt. lib. vii. cap. viii. 
 
 501
 
 389 OF ACQUISITIONS BY WAR, ETC. 
 
 BOOK in. Should it be said, that in such a case there may be peace, and 
 CHAP, sin. a ki nc l of compact by which the conqueror consents to spare 
 the lives of the vanquished, on condition that they acknow- 
 ledge themselves his slaves, he who makes such an assertion 
 is ignorant that war gives no right to take away the life of 
 an enemy who has laid down his arms and submitted ( 140). 
 But let us not dispute the point : let the man who holds such 
 principles of jurisprudence, keep them for his own use and 
 benefit : he well deserves to be subject to such a law. But 
 men of spirit, to whom life is nothing, less than nothing, unless 
 sweetened with liberty, will always conceive themselves at war 
 
 [ 390 ] with that oppressor, though actual hostilities are suspended 
 on their part through want of ability. We may, therefore, 
 safely venture to add, that if the conquered country is to be 
 really subject to the conqueror as to its lawful sovereign, he 
 must rule it according to the ends for which civil government 
 has been established. It is generally the prince alone who 
 occasions the war, and consequently the conquest. Surely it 
 is enough that an innocent people suffer the calamities of war : 
 must even peace itself become fatal to them ? A generous 
 conqueror will study to relieve his new subjects, and mitigate 
 their condition : he will think it his indispensable duty. " Con- 
 quest (says an excellent man) ever leaves behind it an im- 
 mense debt, the discharge of which is absolutely necessary to 
 acquit the conqueror in the eye of humanity."* 
 
 It fortunately happens, that, in this particular as in every 
 thing else, sound policy and humanity are in perfect accord. 
 What fidelity, what assistance, can you expect from an op- 
 pressed people ? Do you wish that your conquest may prove 
 a real addition to your strength, and be well affected to you ? 
 treat it as a father, as a true sovereign. I am charmed with 
 the generous answer recorded of an ambassador from Priver- 
 num. Being introduced to the Roman senate, he was asked 
 by the consul " If we show you clemency, what dependence 
 can we have on the peace you are come to sue for?" "If 
 (replied the ambassador) you grant it on reasonable condi- 
 tions, it will be safe and permanent : otherwise, it will not last 
 long." Some took offence at the boldness of this speech ; but 
 the more sensible part of the senate approved of the Priver- 
 nian's answer, deeming it the proper language of a man and 
 a freeman. " Can it be imagined (said those wise senators) 
 that any nation, or even any individual, will longer continue 
 in an irksome and disagreeable condition, than while com- 
 pelled to submit to it ? If those to whom you give peace 
 receive it voluntarily, it may be relied on : what fidelity can you 
 expect from those whom you wish to reduce to slavery ?"f 
 
 * Montesquieu, in his Spirit of remittimus vobis, qualem nos pacem 
 
 Laws. vobiscum habituros speremus ? Si bo- 
 
 f Quid, si poenam (inquit consul) nam dederitis, inquit, et fidam et per-
 
 OF ACQUISITIONS BY WAR, ETC. 390 
 
 "The most secure dominion," said Camillus, "is that which BOOKHI. 
 is acceptable to those over whom it is exercised."* CHAP, xm. 
 
 Such are the rights which the law of nature gives to the 
 conqueror, and the duties which it imposes on him. The 
 manner of exerting the one, and fulfilling the other, varies 
 according to circumstances. In general, he ought to consult 
 the true interests of his own state, and by sound policy to [ 391 ] 
 reconcile them, as far as possible, with those of the conquered 
 country. He may, in imitation of the kings of France, unite 
 and incorporate it with his own dominions. Such was the 
 practice of the Romans : but they did this in different modes 
 according to cases and conjunctures. At a time when Rome 
 stood in need of an increase of population, she destroyed the 
 town of Alba, which she feared to have as a rival : but she 
 received all its inhabitants within her walls, and thereby 
 gained so many new citizens. In after times the conquered 
 cities were left standing, and the freedom of Rome was given 
 to the vanquished inhabitants. Victory could not have proved 
 so advantageous to those people as their defeat. 
 
 The conqueror may likewise simply put himself in the place 
 of the sovereign whom he has dispossessed. Thus the Tartars 
 have acted in China : the empire was suffered to subsist in its 
 former condition, except that it fell under the dominion of a 
 new race of sovereigns. 
 
 Lastly, the conqueror may rule his conquest as a separate 
 state, and permit it to retain its own form of government. 
 But this method is dangerous : it produces no real union of 
 strength ; it weakens the conquered country, without making 
 any considerable addition to the power of the victorious state. 
 
 It is asked, to whom the conquest belongs, to the prince 202. To 
 who has made it, or to the state ? This question ought never whom the 
 to have been heard of. Can the prince, in his character of 
 sovereign, act for any other end than the good of the state ? 
 Whose are the forces which he employs in his wars ? Even 
 if he made the conquest at his own expense, out of his own 
 revenue or his private and patrimonial estates, does he 
 not make use of the personal exertions of his subjects in 
 achieving it ? Does he not shed their blood in the contest ? 
 But, supposing even that he were to employ foreign or mer- 
 cenary troops, does he not expose his nation to the enemy's 
 
 petuam; si malam, haud diuturnam. esse fidam, ubi voluntarii pacati sint; 
 
 Turn vero minari, nee id ambigue Pri- neque eo loco, ubi servitutem esse velint, 
 
 vernatem, quidam, et illis vocibus ad fidem sperandam esse. Tit. Liv. lib. 
 
 rebellandum incitari pacatos populos, viii. cap. xxi. 
 
 Pars melior senatus ad meliora re- * Certe id firmissimum longe impe- 
 
 sponsa trahere, et dicere viri et liberi rium est, quo obedientes gaudent. Tit. 
 
 vocem auditam : an credi posse ullum Liv. lib. viii. cap. xiii. 
 
 populum, aut hominem denique, in ea (171) Ante, 365, s. 164, and note 
 
 conditione cujus eum pceniteat, diutius (165). 
 
 quam necesse sit, mansurum ? ibi pacem
 
 391 OF ACQUISITIONS BY WAK, ETC. 
 
 BOOK m. resentment ? Does he not involve her in the war ? And 
 
 CHAP, xnr. shall he alone reap all the advantages of it ? Is it not for the 
 
 cause of the state, and of the nation, that he takes up arms ? 
 
 The nation, therefore, has a just claim to all the rights to 
 
 which such war gives birth. 
 
 If the sovereign embarks in a war, of which his own per- 
 sonal interests are the sole ground, as, for instance, to assert 
 his right of succession to a foreign sovereignty, the question 
 then assumes a new face. In this affair the state is wholly 
 unconcerned : but then the nation should be at liberty either 
 to refuse engaging in it, or to assist her prince, at her own 
 option. If he is empowered to employ the national force in 
 support of his personal rights, he should, in such case, make 
 no distinction between these rights and those of the state. 
 The French law, which annexes to the crown all acquisitions 
 made by the king, should be the law of all nations.(lTl) 
 203. Whe- It has been observed ( 196) that we maybe obliged, if not 
 ther we are externally, yet in conscience, and by the laws of equity, to 
 bert* f U " restore to a tn i r( * P art J tne booty we have recovered out of 
 people** * ne hands of an enemy who had taken it from him in an unjust 
 whom the war. The obligation is more certain and more extensive, with 
 enemy had regard to a people whom our enemy had unjustly oppressed, 
 unjustly p or a p e0 pi e thus spoiled of their liberty, never renounce the 
 hope of recovering it. If they have not voluntarily incorpo- 
 [ 392 ] rated themselves with the state by which they have been sub- 
 dued, if they have not freely aided her in the war against 
 us, we certainly ought so to use our victory, as not merely 
 to give them a new master, but to break their chains. To 
 deliver an oppressed people is a noble fruit of victory : it is a 
 valuable advantage gained, thus to acquire a faithful friend. 
 The canton of Schweitz, having wrested the country of Glaris 
 from the house of Austria, restored the inhabitants to their 
 former liberties ; and Glaris, admitted into the Helvetic con- 
 federacy, formed the sixth canton. *(172) 
 
 (171) dnte, 365, s. 164, and note tion; and this is the principle of just 
 (165). war. So, there is no regular inter- 
 
 * Histoire de la Confederation Hel- national or even municipal court to 
 
 ve'tique, par M. de Watteville, liv. iii. adjudicate upon questions of lawful 
 
 under the year 1351. capture or prize. And in Great Britain, 
 
 (172) As nations are independent of no municipal court, whether of common 
 each other, and acknowledge no supe- law or equity, can take cognizance of 
 rior (ante, in several places), there is, any questions arising out of hostile seiz- 
 unfortunately, no sovereign power we; nor can any question respecting 
 among nations to uphold or enforce the infraction of treaties be directly agi- 
 the international kw; no tribunal to tated before courts of law, any more 
 which the oppressed can appeal, as of than questions respecting booty ac- 
 right, against the oppressor ; and, con- quired in a continental inland war. 
 sequently, if either nation refuse to In general, in all states, this is a juris- 
 give effect to the established principles diction assumed only by the sovereign, 
 of international law, the only redress in whom the right or power of declaring 
 is by resorting to arms, and enforcing war and peace, and modifying their 
 the performance of the national obliga- terms, is vested, excepting in some cases 
 
 604
 
 OF THE RIGHT OF POSTLIMINIUM. 
 
 392 
 
 BOOK III. 
 CHAP. XIV. 
 
 CHAP. XIV. 
 
 OF THE RIGHT OF POSTLIMINIUM. (173) 
 
 THE right of postliminium is that in virtue of which per- 204. De- 
 sons and things taken by the enemy are restored to their finition of 
 
 . the right of 
 
 of particular facts, where the king has 
 thought fit to act with the concurrence 
 of his nation at large, instead of pro- 
 ceeding only upon his prerogative. In 
 Great Britain, the king usually, by a 
 special commission, delegates his power 
 to decide upon questions of capture and 
 prize to the chief judge of the Admi- 
 ralty Court, but quite separate from his 
 ordinary jurisdiction, with an appeal to 
 the Privy Council ; and before that tri- 
 bunal alone can any question of capture 
 or prize be discussed ; (Elphinstone v. 
 Bedreechund, Knapp's Rep. Privy Coun- 
 cil, 316 to 361; Le Caux v. Eden, 
 Dougl. 594 ; Hill v. Reardon, 2 Rus- 
 sell's Rep. 608 ;) and not in an action at 
 law or court of equity, excepting in the 
 case of a trust. Id. ibid. ; and Faith 
 v. Pearson, Holt's Cas. Ni. Pri. 113. 
 Therefore, where the members of the 
 provisional government of a recent- 
 ly conquered country seized the property 
 of a native of it, who had been refused 
 the benefit of the articles of capitula- 
 tion of a fortress of which he had been 
 the governor, but had been permitted 
 to reside, under military surveillance, 
 in his own house in the city in which 
 the seizure was made, and which was 
 at a considerable distance from the 
 scene of actual hostilities ; it was held 
 by the House of Lords, hi England, 
 that the seizure having been made 
 fiagrante et nondum cessante hello, 
 must be regarded in the light of a 
 hostile seizure, and that a municipal 
 court had no jurisdiction on the sub- 
 ject ; (Elphinstone v. Bedreechund, 
 Knapp's Rep. 316 to 361 ; and see 
 Hill v. Reardon, 2 Sim. & Stu. 431 ; 
 but which on one point, respecting a 
 trust, was afterwards overruled in 
 Chancery ; Id. 2 Russ. 608 ;) and 
 per Lord Tenterden" We think 
 the proper character of the transaction 
 was that of a hostile seizure, made, if 
 
 not flagrante, yet nondum cessante ^ Oi 
 hello, regard being had both to the UI1 
 time, the place, and the person ; and, 
 consequently, that the municipal court 
 had no jurisdiction to adjudge upon 
 the subject : but that, if any thing 
 was done amiss, recourse could 
 only be had to the government for 
 redress. We shall therefore re- 
 commend it to his majesty to 
 reverse the judgment of the Su- 
 preme Court of Bombay." Id. page 
 360-1. 'Again, it has been held 
 that the circumstances that a recently 
 conquered city, where a seizure of the 
 property of a native is made by the 
 members of a provisional government 
 during time of war, had been some 
 months previously in the undisturbed 
 possession of that government, and 
 that courts for the administration of 
 justice were then sitting in it, under 
 the authority of that government, do 
 not alter the character of the transac- 
 tion, so as to make it a subject of 
 cognizance by a municipal court." 
 Id. 316. And there is no distinction, 
 in this respect, between the public 
 and private property of an absolute 
 monarch ; and, therefore, money in 
 the hands of the banker of an absolute 
 monarch, whose territory has been 
 conquered by the British, may be 
 recovered from the banker, on an 
 information, on behalf of the crown. 
 Mvocate-General of Bombay v. Jlmtr- 
 chund, Knapp's Rep. 329, note ; El- 
 phinstone v. Bedreechund, Knapp's Rep. 
 357. 
 
 As the capture, in general, belongs 
 to the sovereign of the state (although, 
 by municipal regulations, the actual 
 captors may acquire some subordinate 
 rights), it also follows that no British 
 subject can maintain an action against 
 the captor. Caux v. Eden, 2 Dougl. 
 573. In a state resulting from a state 
 
 (173) See, in general, 1 Chitty's Commercial Law, 430 to 435; Id. 
 Index, tit. Postliminium. C. 
 
 64 28 506
 
 392 
 
 OF THE RIGHT OF POSTLIMINITTM. 
 
 BOOK in. former state, on coming again into the power of the nation 
 CHAP, xiv. to which they belonged. (174) 
 
 205. Foun- ^ e sovereign is bound to protect the persons and 
 
 dationof property of his subjects, and to defend them against the 
 
 this right, enemy. When, therefore, a subject, or any part of his 
 
 property, has fallen into thevenemy's possession, should any 
 
 fortunate event bring them again into the sovereign's power, 
 
 it is undoubtedly his duty to restore them to their former 
 
 condition, to re-establish the persons in all their rights 
 
 and obligations, to give back the effects to the owners, 
 
 of war, if property be seized under an 
 erroneous supposition that it belongs 
 to the enemy, it may be liberated by 
 the proper authorities ; but no action 
 can be maintained against the party 
 who has taken it, in a court of law. 
 Caux v. Eden, 2 Dougl. 573 ; Elphin- 
 stone v. Bedreechund, Knapp's Rep. 
 357. If an English naval commander 
 seize any movable as enemies' pro- 
 perty, that turns out clearly to be 
 British property, he forfeits his prize 
 to the Prize Court (sometimes con- 
 founded with the Court of Admiralty), 
 and that court awards the return of it 
 to the party from whom it was taken. 
 The Court of Admiralty is the proper 
 tribunal for the trial of questions of 
 prize or no prize, and it exercises this 
 jurisdiction as a court of prize, under 
 a commission from his majesty ; and 
 if it makes an unsatisfactory deter- 
 mination, an appeal lies to his ma- 
 jesty in council ; for, the king reserves 
 the ultimate right to decide on such 
 questions by his own authority, and 
 does not commit their determination 
 to any municipal court of justice. 
 
 Booty taken under the colour of 
 military authority, falls under the 
 same rule. If property be taken by an 
 officer under the supposition that it is 
 the property of a hostile state, or of 
 individuals, which ought to be con- 
 fiscated, no municipal court can judge 
 of the propriety or impropriety of the 
 seizure : it can be judged of only by 
 an authority delegated by his majesty, 
 and by his majesty, ultimately, as- 
 sisted by the lords in council. There 
 are no direct decisions on such ques- 
 tions, because, as was stated by 
 Lord Mansfield, in Lindo v. Rodney, 
 they are cases of rare occurrence. 
 Elphinstone v. Bedreechund, Knapp's 
 Rep. 340, 357-8; Caux v. Eden, 
 Dougl. 592 ; Lindo v. Rodney, Id. 313. 
 506 
 
 For these reasons, it is usual, when 
 questions of importance between two 
 sovereigns, or their subjects, arise, by 
 particular treaty, to constitute a tri- 
 bunal for that special purpose; and 
 municipal statutes have been passed 
 in England in aid of such treaty. 
 Thus, by additional articles of the 
 definitive treaty of peace between 
 Great Britain and France, of the 30th 
 May 1814, certain conventions were 
 made for indemnifying British sub- 
 jects for the confiscation of their pro- 
 perty by the French revolutionary 
 government, and certain commission- 
 ers were appointed between the two 
 countries, to examine and decide upon 
 such British claims ; and the statute 
 59 Geo. 3, c. 51, was passed with 
 the same object ; and such claims 
 were adjudicated upon between the 
 two countries. It was held, however, 
 that these conventions and treaties, 
 and the act for carrying the same into 
 effect, did not exclude the jurisdiction 
 of a court of equity to examine and 
 enforce equities attaching upon the 
 compensation in the hands of the 
 person in whose favour the award 
 of the commissioners had been 
 made; (Hill v. Reardon, 2 Russell's 
 Rep. 609, overruling S. C. in 2 Sim. 
 & Stu. 437;) and it was holden 
 that, where a person, in whose favour 
 an adjudication under such conven- 
 tions has been made by the com- 
 missioners or by the Privy Council, 
 is affected by a trust or by fraud, a 
 court of equity has jurisdiction to 
 enforce the trust or relieve against the 
 fraud (id. ibid.) ; and the same prin- 
 ciple would, no doubt, be extended 
 to cases of capture or prize. C. 
 
 (174) See ante, s. 196, page 385, 
 note (168), as to movables and 
 ships. C.
 
 OF THE EIGHT OF POSTLIMINIUM. 392 
 
 in a word, to replace every thing on the same footing on BOOK m. 
 which it stood previous to the enemy's capture. CHAP. XIT. 
 
 The justice or injustice of the war makes no difference in 
 this case, not only because, according to the voluntary law 
 of nations, the war, as to its effects, is reputed just on both 
 sides, but likewise because war, whether just or not, is a 
 national concern ; and, if the subjects who fight or suffer in 
 the national cause, should, after they have, either in their 
 persons or their property, fallen into the enemy's power, 
 be, by some fortunate incident, restored to the hands of 
 their own people, there is no reason why they should not 
 be restored to their former condition. It is the same as if 
 they had never been taken. If the war be just on the part 
 of their nation, they were unjustly captured by the enemy ; 
 and thus nothing is more natural than to restore them as 
 soon as it becomes possible. If the war be unjust, they are 
 under no greater obligation to suffer in atonement for its 
 injustice than the rest of the nation. Fortune brings down 
 the evil on their heads when they are taken : she delivers 
 them from it when they escape. Here, again, it is the same 
 as if they never had been captured. Neither their own 
 sovereign, nor the enemy, has any particular right over [ 393 "] 
 them. The enemy has lost by one accident what he had 
 gained by another. 
 
 Persons return, and things are recovered, by the right of 206. How 
 postliminium, when, after having been taken by the enemy, it; takes ef - 
 they come again into the power of their own nation ( 204). ' 
 This right, therefore, takes effect as soon as such persons 
 or things captured by the enemy fall into the hands of sol- 
 diers belonging to their own nation, or are brought back to 
 the army, the camp, the territories of their sovereign, or the 
 places under his command. 
 
 Those who unite with us to carry on a war are joint par- 207. Whe- 
 ties with us : we are engaged in a common cause ; our ther it takes 
 right is one and the same ; and they are considered as effect among 
 making but one body with us. Therefore, when persons or ^^ ies 
 things captured by the enemy are retaken by our allies or 
 auxiliaries, or in any other manner fall into their hands, 
 this, so far as relates to the effect of the right, is precisely 
 the same thing as if they were come again into our own 
 power ; since, in the cause in which we are jointly embark- 
 ed, our power and that of our allies is but one and the 
 same. The right of postliminium therefore takes effect 
 among those who carry on the war in conjunction with us ; 
 and the persons and things recovered by them from the 
 enemy are to be restored to their former condition. (175) 
 
 (175) As to the general rule in the But, in general, the precise rule is 
 absence of treaty, see Santa Cruz, fixed by treaty between allies. Id. 
 I Rob. Rep. 49 ; ante, 385, n. (168). ibid. C. 
 
 507
 
 393 OF THE RIGHT OF POSTLIMINIUM. 
 
 BOOK in. But, does this right take place in the territories of our 
 CHAP, xiv. allies ? Here a distinction arises. If those allies make a 
 common cause with us, if they are associates in the war, 
 we are necessarily entitled to the right of postliminium 
 in their territories as well as in our own : for, their state is 
 united with ours, and, together with it, continues but one 
 party in the war we carry on. But if, as in our times is 
 frequently the practice, an ally only gives us a stated suc- 
 cour stipulated by treaty, and does not himself come to a 
 rupture with our enemy, between whose state and his own, 
 in their immediate relations, peace continues to be observed, 
 in this case, only the auxiliaries whom he sends to our 
 assistance are partakers and associates in the war ; and his 
 dominions remain in a state of neutrality. 
 
 208. Of no Now, the right of postliminium does not take effect in 
 validity in ne utral countries : for, when a nation chooses to remain 
 neuter in a war, she is bound to consider it as equally just 
 on both sides, so far as relates to its effects, and, conse- 
 quently, to look upon every capture made by either party 
 as a lawful acquisition. To allow one of the parties, in 
 prejudice to the other, to enjoy in her dominions the right 
 [ 394 ] of claiming things taken by the latter, or the right of post- 
 liminium, would be declaring in favour of the former, and 
 departing from the line of neutrality. 
 
 209. What Naturally, every kind of property might be recovered by 
 things are fa e r ight of postliminium ; and there is no intrinsic reason 
 by^thtr e wn y movables should be excepted in this case, provided 
 right (176) they can be certainly recognised and identified. Accord- 
 ingly, the ancients, on recovering such things from the 
 enemy, frequently restored them to their former owners.* 
 But the difficulty of recognising things of this nature, and 
 the endless disputes which would arise from the prosecu- 
 tion of the owners' claims to them, have been deemed mo- 
 tives of sufficient weight for the general establishment of a 
 contrary practice. To these considerations we may add, 
 that, from the little hope entertained of recovering effects 
 taken by the enemy and once carried to a place of safety, a 
 reasonable presumption arises that the former owners have 
 relinquished their property. It is therefore with reason 
 that movables or booty are excepted from the right of 
 postliminium, unless retaken from the enemy immediately 
 after his capture of them ; in which case, the proprietor 
 neither finds a difficulty in recognising his effects, nor is 
 presumed to have relinquished them. And, as the custom 
 has once been admitted, and is now well established, there 
 would be an injustice in violating it (Prelim. 26). Among 
 
 (176) As to movables and ships, * See several instances in Grotius, 
 ante, 384, n. C. book iii. ch. xvi. 2.
 
 OF THE RIGHT OF POSTLIMINIUM. 394 
 
 the Romans, indeed, slaves were not treated like other BOOK m. 
 movable property : they, by the right of postliminium, CHAP, xiv. 
 were restored to their masters, even when the rest of the 
 booty was detained. The reason of this is evident : for, as 
 it was at all times easy to recognise a slave, and ascertain 
 to whom he belonged, the owner, still entertaining hopes 
 of recovering him, was not supposed to have relinquished 
 his right. 
 
 Prisoners of war, who have given their parole, territories 210. Of 
 and towns which have submitted to the enemy, and kave^ e J- 
 sworn or promised allegiance to him, cannot of themselves *^ n ^ t r _ 
 return to their former condition by the right of postlimi- turn by the 
 nium : for, faith is to be kept even with enemies (174). rightofpost- 
 
 But if the sovereign retakes those towns, countries, or limmmm - 
 prisoners, who had surrendered to the enemy, he recovers ( ' 
 all his former rights over them, and is bound to re-establish 2 . x l 7" he y 
 them in their pristine condition ( 205). In this case, they^^en 
 enjoy the right of postliminium without any breach of their retaken, 
 word, any violation of their plighted faith. The enemy 
 loses by the chance of war a right which the chance of war 
 had before given him. But, concerning prisoners of war, a 
 distinction is to be made. If they were entirely free on 
 their parole, the single circumstance of their coming again 
 into the power of their own nation does not release them, 
 since, even if they had returned home, they would still 
 have continued prisoners. The consent of the enemy who 
 had captured them, or his total subjugation, can alone dis- 
 charge" them. But, if they have only promised not to effect 
 their escape, a promise which prisoners frequently make [ 395 ] 
 in order to avoid the inconveniences of a jail, the only 
 obligation incumbent on them is, that they shall not, of 
 themselves, quit the enemy's country, or the place assigned 
 for their residence. And if the troops of their party 
 should gain possession of the place where they reside, the 
 consequence is, that, by the right of war, they recover their 
 liberty, are restored to their own nation, and reinstated in 
 their former condition. (178) 
 
 (177) In general, as regards coun- absolutely new. Upon this principle 
 
 tries or persons taken by a belligerent was decided an important question 
 
 state, who were not the subjects of in the case of Boedes Lust, 5 Rob. 
 
 that state during any preceding part Rep. 233 ; and on the same principle 
 
 of the same war, a different rule pre- it was established, that, if a neutral 
 
 vails than that laid down by Vattel, have but just set his foot on the 
 
 sect. 211 ; for, the law of postliminium colony of an enemy for a few hours 
 
 implies that the party claiming it before its capture ; but if it be proved 
 
 returns to his previous character, that he went there for the purpose of 
 
 And he who, during the whole war, settling, then his property will be 
 
 has been the subject of the enemy subject to condemnation, as if he 
 
 alone, must be considered, when he were a native enemy. And see the 
 
 falls into the hands of the rival state, Diana, 5 Rob. Rep. 60. C. 
 not as returning to a previous cha- (178) See note (177), ante. 
 racter, but as acquiring a character 
 
 2s 2 509
 
 395 OF THE RIGHT OF POSTLIMINIUM. 
 
 BOOK in. When a town, reduced by the enemy's arms, is retaken by 
 CHAP, xiv. those of her own sovereign, she is, as we have above seen, 
 2 12. Whe- restored to her former condition, and reinstated in the pos- 
 ther this session of all her rights. It is asked whether she thus re- 
 tflMjs T" covers such P ar t f ner property as had been alienated by 
 tne'ir pro- *k e enemy while he kept her in subjection. In the first place, 
 perty alien- we are to make a distinction between movable property not 
 ated by recoverable by the right of postliminium ( 202), and im- 
 the enemy, movables. The former belongs to the enemy who gets it 
 into his hands, and he may irrecoverably alienate it. As to 
 immovables, let it be remembered that the acquisition of a 
 town taken in war is "not fully consummated till confirmed by 
 a treaty of peace, or by the entire submission or destruction 
 of the state to which it belonged ( 197). Till then, the sove- 
 reign of that town has hopes of retaking it, or of recovering it 
 by a peace. And from the moment it returns into his power, 
 he restores it to all its rights ( 205), and consequently it 
 recovers all its possessions, as far as in their nature they are 
 recoverable. It therefore resumes its immovable possessions 
 from the hands of those persons who have been so prematurely 
 forward to purchase them. In buying them of one who had 
 not an absolute right to dispose of them, the purchasers made 
 a hazardous bargain ; and if they prove losers by the transac- 
 tion, it is a consequence to which they deliberately exposed 
 themselves. But if that town had been ceded to the enemy by 
 a treaty of peace, or was completely fallen into his power by 
 the submission of the whole state, she has no longer any 
 claim to the right of postliminium ; and the alienation of any 
 of her possessions by the conqueror is valid and irreversible ; 
 nor can she lay claim to them, if, in the sequel, some fortunate 
 revolution should liberate her from the yoke of the conqueror. 
 When Alexander made a present to the Thessalians of the 
 sum due from them to the Thebans (see 77), he was so abso- 
 lutely master of the republic of Thebes, that he destroyed the 
 city and sold the inhabitants. 
 
 The same decisions hold good with regard to the immov- 
 able property of individuals, prisoners or not, which has been 
 alienated by the enemy while he was master of the country. 
 Grotius proposes the question with respect to immovable pro- 
 perty possessed in a neutral country by a prisoner of war.* 
 [ 396 ] But, according to the principles we have laid down, this 
 question is groundless : for, the sovereign who makes a pri- 
 soner in war, has no other right over him than that of detain- 
 ing his person until the conclusion of the war, or until he be 
 ransomed ( 148, &c.) ; but he acquires no right to the pri- 
 soner's property, unless he can seize on it. It is impossible to 
 produce any natural reason why the captor should have a right 
 
 , * Lib. iii. cap. ix. vL 
 
 510
 
 OF THE EIGHT OF POSTLIMINIUM. 396 
 
 to dispose of his prisoner's property, unless the prisoner has BOOK m. 
 it about him. CHAP. XIY. 
 
 When a nation, a people, a state, has been entirely sub- 2 i3.Whe- 
 dued, it is asked whether a revolution can entitle them to the ther a na- 
 right of postliminium. In order justly to answer this ques- tion that has 
 tion, there must again be a distinction of cases. If that j^Jjj 1 e ^_ 
 conquered state has not yet acquiesced in her new subjection, due Jean en- 
 fa as not voluntarily submitted, and has only ceased to resist j oy the right 
 from inability, if her victor has not laid aside the sword of of postlimi- 
 conquest and taken up the sceptre of peace and equity, mum * 
 such a people are not really subdued : they are only defeated 
 and oppressed ; and, on being delivered by the arms of an 
 ally, they doubtless return to their former situation ( 207). 
 Their ally cannot become their conqueror ; he is their deli- 
 verer ; and all the obligation of the party delivered is to re- 
 ward him. If the subsequent conqueror, not being an ally 
 to the state of which we speak, intends to keep it under his 
 own jurisdiction as the reward of his victory, he puts him- 
 self in the place of the former conqueror, and becomes the 
 enemy of the state which the other had oppressed: that 
 state may lawfully resist him, and avail herself of a favour- 
 able opportunity to recover her liberty. If she had been 
 unjustly oppressed, he who rescues her from the yoke of the 
 oppressor ought generously to reinstate her in the possession 
 of all her rights ( 203). 
 
 The question changes with regard to a state which haa 
 voluntarily submitted to the conqueror. If the people, no 
 longer treated as enemies, but as actual subjects, have sub- 
 mitted to a lawful government, they are thenceforward de- 
 pendent on a new sovereign; or, being incorporated with 
 the victorious nation, they become a part of it, and share its 
 fate. Their former state is absolutely destroyed; all its 
 relations, all its alliances are extinguished (Book II. 203). 
 Whoever, then, the new conqueror may be, that afterwards 
 subdues the state to which these people are united, they 
 share the destiny of that state, as a part shares the fate of 
 the whole. This has been the practice of nations in all ages, 
 I say, even of just and equitable nations, especially with 
 regard to an ancient conquest. The most moderate conqueror 
 confines his generosity in this particular to the restoration 
 of the liberties of a people who have been but recently sub- 
 dued, and whom he does not consider as perfectly incorporated, 
 or well cemented by inclination, with the state which he has 
 conquered. 
 
 If the people in question shake off the yoke and recover 
 their liberty by their own exertions, they regain all their 
 rights ; they return to their former situation ; and foreign 
 nations have no right to determine whether they have shaken 
 off the yoke of lawful authority, or burst the chains of slavery. 
 Thus, the kingdom of Portugal, which had been seized on 
 
 511
 
 397 OF THE RIGHT OF POSTLIMINIUM. 
 
 BOOK in. by Philip II. king of Spain, under pretence of an hereditary 
 
 CHAP, xiv. right, but in reality by force and the terror of his arms, 
 
 re-established the independency of her crown, and recovered 
 
 her former rights, when she drove out the Spaniards, and 
 
 placed the duke of Braganza on the throne. 
 
 214. Right Provinces, towns, and lands, which the enemy restores by 
 
 niuTfS 1 "" the treat y of P eace > are certainly entitled to the right of post- 
 
 what is re- i"*"Wttl : for, the sovereign, in whatever manner he reco- 
 
 stored at the vers them, is bound to restore them to their former condition, 
 
 peace, as soon as he regains possession of them ( 205). The 
 
 enemy, in giving back a town at the peace, renounces the 
 
 right he had acquired by arms. It is just the same as if he 
 
 had never taken it ; and the transaction furnishes no reason 
 
 which can justify the sovereign in refusing to reinstate such 
 
 town in the possession of all her rights, and restore her to 
 
 her former condition. 
 
 215. and But whatever is ceded to the enemy by a treaty of peace, 
 ceded't^th 18 t ru ty an( ^ completely alienated. It has no longer any 
 enemy. 6 c l a i m to the right of postliminium, unless the treaty of peace 
 
 be broken and cancelled. 
 
 216. The And as things not mentioned in the treaty of peace re- 
 
 r'm^niu 1 * 081 " ma ^ n * n the condition in which they happen to be at the 
 
 does not er- ^ me when the treaty is concluded, and are, on both sides, 
 
 ist after a tacitly ceded to the present possessor, it may be said, in ge- 
 
 peace. neral, that the right of postliminium no longer exists after 
 
 the conclusion of the peace. That right entirely relates to 
 
 the states of war. 
 
 217. Why Nevertheless, and for this very reason, there is an excep- 
 always m ^ion to be made here in favour of prisoners of war. Their 
 sonere Pn ~ sovere ig n is bound to release them at the peace ( 154). But, 
 if he cannot accomplish this, if the fate of war compels him 
 to accept of hard and unjust conditions, the enemy, who 
 ought to set the prisoners at liberty when the war is termi- 
 nated, and he has no longer any thing to fear from them 
 ( 150, 153), continues the state of war with respect to 
 them, if he still detains them in captivity, and especially if 
 he reduces them to slavery ( 152). They have therefore a 
 right to effect their escape from him, if they have an oppor- 
 tunity, and to return to their own country, equally as in war 
 time ; since, with regard to them, the war still continues. 
 And in that case, the sovereign, from his obligation to pro- 
 tect them, is bound to restore them to their former condi- 
 tion ( 205). 
 
 218. They Further, those prisoners who are, without any lawful rea- 
 
 are free even gonj detained after the conclusion of peace, become imme- 
 
 hLTne^ di^ 61 ? fr ee, when, once escaped from captivity, they have 
 
 t r ai country. even reached a neutral country : for, enemies are not to be 
 
 pursued and seized on neutral ground ( 132) ; and whoever 
 
 detains an innocent prisoner after the peace, continues to 
 
 be his enemy. This rule should and actually does obtain 
 
 512
 
 OF THE RIGHT OF POSTLIMINIUM. 397 
 
 among nations who do not admit and authorize the practice BOOK m. 
 of enslaving prisoners of war. 
 
 It is sufficiently evident from the premises, that prisoners 219. HOW 
 are to be considered as citizens who may one day return to the ri ^ te 
 their country : and, when they do return, it is the duty of tionsof lg ri 
 the sovereign to re-establish them in their former condition, soners sub- 
 Hence it clearly follows, that the rights of every one of sist 
 those prisoners, together with his obligations (or the rights 
 of others over him), still subsist undiminished, only the [ 398 ] 
 exertion of them is, for the most part, suspended during the 
 time of his captivity. 
 
 The prisoner of war therefore retains a right to dispose of 220. Tes- 
 his property, particularly in case of death : and, as there is tament of a 
 
 ,,\ r . *V , ***. -L- i. 0.1. i ii prisoner of 
 
 nothing m the state of captivity which can in this latter re-^ ar 
 spect deprive him of the exercise of his right, the testament 
 of a prisoner of war ought to be valid in his own country, 
 unless rendered void by some inherent defect. 
 
 With nations which have established the indissolubility of ? 221. Mar- 
 the marriage ties, or have ordained that they should continue nage * 
 for life unless dissolved by the judgment of a court, those 
 ties still subsist, notwithstanding the captivity of one of the 
 parties, who, on his return home, is, by postliminium, again 
 entitled to all his matrimonial rights. 
 
 We do not here enter into a detail of what the civil laws of ? 222. Re- 
 particular nations have ordained with respect to the right of 
 postliminium : we content ourselves with observing that such - 
 
 local regulations are obligatory on the subjects of the state n i u m, esta- 
 alone, and do not affect foreigners. Neither do we here ex- blished by 
 amine what has been settled on that head by treaties : those treaty or 
 particular compacts establish merely a conventional right, CU 
 which relates only to the contracting parties. Customs con- 
 firmed by long and constant use are obligatory on those na- 
 tions who have given a tacit consent to them ; and they are 
 to be respected, when not contrary to the law of nature : but 
 those which involve an infringement of that sacred law are 
 faulty and invalid ; and, instead of conforming to such customs, 
 every nation is bound to use her endeavours, to effect their 
 abolition. Among the Romans the right of postliminium 
 was in force, even in times of profound peace, with respect to 
 nations with which Rome had neither connections of friend- 
 ship, rights of hospitality, nor alliance.* This was because 
 those nations were, as we have already observed, considered 
 in some measure as enemies. The prevalence of milder man- 
 ners has almost everywhere abolished that remnant of bar- 
 barism. 
 
 * Digest, lib. xlix. de Capt et Postlim. leg. v. 3 ii. 
 65 513
 
 399 OF THE RIGHT OF 
 
 BOOK III. 
 CHAP. XV. 
 
 CHAP. XV. 
 
 OF THE RIGHT OF PRIVATE PERSONS IN WAR. 
 
 223. Sub- THE right of making war, as we have shown in the first 
 jects cannot chapter of this book, solely belongs to the sovereign power, 
 commit hos- wn j cn no t on }y decides whether it be proper to undertake the 
 oiuLYso?" war > an( * to Declare it, but likewise directs all its operations, 
 vereign's as circumstances of the utmost importance to the safety of 
 order. the state. Subjects, therefore, cannot of themselves take 
 any steps in this aifair ; nor are they allowed to commit any 
 act of hostility without orders from their sovereign. Be it 
 understood, however, that, under the head of "hostilities," 
 we do not here mean to include self-defence. A subject may 
 repel the violence of a fellow-citizen when the magistrate's 
 assistance is not at hand ; and with much greater reason may 
 he defend himself against the unexpected attacks of foreigners. 
 224. That The sovereign's order, which commands acts of hostility, 
 order may an d gives a right to commit them, is either general or parti- 
 be general cu i ar> ^Q declaration of war, which enjoins the subjects at 
 larf" large to attack the enemy's subjects, implies a general order. 
 The generals, officers, soldiers, privateers-men, and partisans, 
 being all commissioned by the sovereign, make war by virtue 
 of a particular order. 
 
 g 225. But, though an order from the sovereign be necessary to 
 
 Source of authorize the subjects to make war, that necessity wholly re- 
 the neces- 8u lts from the laws essential to every political society, and 
 sity of such no ^. f rom an y obligation relative to the enemy. For, when 
 one nation takes up arms against another, she from that mo- 
 ment declares herself an enemy to all the individuals of the 
 latter, and authorizes them to treat her as such. What right 
 could she have in that case to complain of any acts of hos- 
 tility committed against her by private persons without orders 
 from their superiors ? The rule, therefore, of which we here 
 speak, relates rather to public law in general, than to the law 
 of nations properly so called, or to the principles of the re- 
 ciprocal obligations of nations. 
 
 ? 226. Why 1^ we confine our views to the law of nations, considered in 
 the law of itself, when once two nations are engaged in war, all the 
 nations subjects of the one may commit hostilities against those of 
 
 s the other ' and do them a11 the mischief authorized by the 
 s state of war. But, should two nations thus encounter each 
 other with the collective weight of their whole force, the war 
 would become much more bloody and destructive, and could 
 hardly be terminated otherwise than by the utter extinction 
 of one of the parties. The examples of ancient wars abun- 
 dantly prove the truth of this assertion to any man who will 
 for a moment recall to mind the first wars waged by Home 
 
 514
 
 PRIVATE PERSONS IN WAR. 400 
 
 against the popular republics by which she was surrounded. BOOK m. 
 It is therefore with good reason that the contrary practice . CHA p- * v -.. 
 has grown into a custom with the nations of Europe, at least 
 with those that keep up regular standing armies or bodies of 
 militia. The troops alone carry on the war, while the rest 
 of the nation remain in peace. And the necessity of a special 
 order to act is so thoroughly established, that, even after a 
 declaration of war between two nations, if the peasants of 
 themselves commit any hostilities, the enemy shows them no 
 mercy, but hangs them up as he would so many robbers or 
 banditti. The crews of private ships of war stand in the same 
 predicament : a commission from their sovereign or admiral 
 can alone, in case they are captured, insure them such treat- 
 ment as is given to prisoners taken in regular warfare. 
 
 In declarations of war, however, the ancient form is still 225". Pre- 
 retained, by which the subjects in general are ordered, not cise mean - 
 only to break off all intercourse with the enemy, (179) but ^ e f th 
 also to attack him. Custom interprets this general order. It 
 authorizes, indeed, and even obliges every subject, of what- 
 ever rank, to secure the persons and things belonging to the 
 enemy, when they fall into his hands (179); but it does not 
 invite the subjects to undertake any offensive expedition with- 
 out a commission or particular order. 
 
 There are occasions, however, when the subjects may reason- g 228. What 
 ably suppose the sovereign's will; and act in consequence of private per- 
 his tacit command. Thus, although the operations of war are ^ n d s e ^ e 
 by custom generally confined to the troops, if the inhabitants p res uming 
 of a strong place, taken by the enemy, have not promised or on the sove- 
 sworn submission to him, and should find a favourable oppor- reign's will, 
 tunity of surprising the garrison, and recovering the place for 
 their sovereign, they may confidently presume that the prince 
 will approve of this spirited enterprise. And where is the 
 man that shall dare to censure it ? It is true, indeed, that, 
 if the townsmen miscarry in the attempt, they will experience 
 very severe treatment from the enemy. But this does not 
 prove the enterprise to be unjust, or contrary to the laws of 
 war. The enemy makes use of his right, of the right of arms, 
 which authorizes him to call in the aid of terror to a certain 
 degree, in order that the subjects of the sovereign with whom 
 
 (179) Hence it is illegal to have any State* v. Barker, Paine's C. C. Rep. 
 
 commercial intercourse with an enemy, 157.} Thus, Great Britain permitted 
 
 or even to pay him a just debt, during commercial intercourse with some of 
 
 war. Grotlus, b. iii. c. iv. | 8; Byn- her plantations, whilst under capture 
 
 kershoek, b. L c. iii.; Dr. Phillimore by the French, because she expected 
 
 on Licenses, 5; The Hoop, 1 Rob. Rep. to recover them back. See observa- 
 
 198; Potts v. Bell, 8 Term Rep. 548; tions in The Hoop, 1 Rob. Rep. 209; 
 
 Willson v. Patteson, 7 Taunt 439 j but these exceptions are in general 
 
 3 Meriv. R. 469 ; 2 Ves. <t Bea. 323 ; carried on under orders in council and 
 
 {Scholefield v. Eichelberger, 7 Pet S. C. licenses. C. {See The William Penn, 
 
 Rep. 586.} To this general rule there 3 Wash. C. C. Rep. 4848.} 
 are sometimes exceptions. {The U. 
 
 515
 
 400 OF THE RIGHT OF 
 
 BOOK m. he is at war may not be willing to venture on such bold under- 
 CHAP. xv. takings, the success of which might prove fatal to him. 
 During the last war, the inhabitants of Genoa suddenly took 
 up arms of their own accord, and drove the Austrians from 
 the city : and the republic celebrates an annual commemora- 
 tion of that event by which she recovered her liberty. 
 I 229. Pri- Persons fitting out private ships to cruise against the enemy 
 vateers. acquire the property of whatever captures they make, as a 
 [ 401 ] compensation for their disbursements, and for the risks they 
 run : but they acquire it by grant from the sovereign, who 
 issues out commissions to them. The sovereign allows them 
 either the whole or a part of the capture : this entirely depends 
 on the nature of the contract he has made with them. 
 
 As the subjects are not under an obligation of scrupulously 
 weighing the justice of the war, which indeed they have not 
 always an opportunity of being thoroughly acquainted with, 
 and respecting which they are bound, in case of doubt, to rely 
 on the sovereign's judgment ( 187), they unquestionably 
 may with a safe conscience serve their country by fitting out 
 privateers, unless the war be evidently unjust. But, on the 
 other hand, it is an infamous proceeding on the part of 
 foreigners, to take out commissions from a prince, in order to 
 commit piratical depredations on a nation which is perfectly 
 innocent with respect to them. The thirst of gold is their 
 only inducement ; nor can the commission they have received 
 efface the infamy of their conduct, though it screens them 
 from punishment. Those alone are excusable, who thus assist 
 a nation whose cause is undoubtedly just, and that has taken 
 up arms with no other view than that of defending herself 
 from oppression. They would even deserve praise for their 
 exertions in such a cause, if the hatred of oppression, and the 
 love of justice, rather than the desire of riches, stimulated 
 them to generous efforts, and induced them to expose their 
 lives or fortunes to the hazards of war. 
 
 % 230. Vo- The noble view of gaining instruction in the art of war, 
 lunteers. an( j ^us acquiring a greater degree of ability to render use- 
 ful services to their country, has introduced the custom of 
 serving as volunteers even in foreign armies ; and the practice 
 is undoubtedly justified by the sublimity of the motive. At 
 present, volunteers, when taken by the enemy, are treated as 
 if they belonged to the army in which they fight. Nothing 
 can be more reasonable : they in fact join that army, and 
 unite with it in supporting the same cause ; and it makes little 
 difference in the case, whether they do this in compliance 
 with any obligation, or at the spontaneous impulse of their 
 own free choice. 
 
 3 231. What Soldiers can undertake nothing without the express or tacit 
 
 soldiers and command of their officers. To obey and execute, is their 
 
 ma^cTo P rov ^ nce > not to act at tne i r own discretion : they are only 
 
 instruments in the hands of their commanders. Let it be 
 
 516
 
 PRIVATE PERSONS IN WAR. 401 
 
 remembered here, that, by a tacit order, I mean one which is BOOK m. 
 necessarily included in an express order, or in the functions CHAP - XY - 
 with which a person is intrusted by his superior. What is 
 said of soldiers must also in a proper degree be understood 
 of officers, and of all who have any subordinate command. 
 Wherefore, with respect to things which are not intrusted to 
 their charge, they may both be considered as private indi- 
 viduals, who are not to undertake any thing without orders. 
 The obligation of the military is even more strict, as the 
 martial law expressly forbids acting without orders ; and this 
 discipline is so necessary that it scarcely leaves any room for 
 presumption. In war, an enterprise which wears a very 
 advantageous appearance, and promises almost certain success, 
 may nevertheless be attended with fatal consequences. It [ 402 ] 
 would be dangerous, in such a case, to leave the decision to 
 the judgment of men in subordinate stations, who are not 
 acquainted with all the views of their general, and who do not 
 possess an equal degree of knowledge and experience : it is 
 therefore not to be presumed that he intends to let them act 
 at their own discretion. Fighting without orders is almost 
 always considered, in a military man, as fighting contrary to 
 orders, or contrary to prohibition. There is, therefore, hardly 
 any case, except that of self-defence, in which the soldiers and 
 inferior officers may act without orders. In that one case, 
 the orders may safely be presumed ; or rather, the right of 
 self-defence naturally belongs to every one, and requires no 
 permission. During the siege of Prague, in the last war, a 
 party of French grenadiers made a sally without orders and 
 without officers, possessed themselves of a battery, spiked a 
 part of the cannon, and brought away the remainder into the 
 city. The Roman severity would have punished those men 
 with death. The famous example of the consul Manlius is 
 well known, who, notwithstanding the victory gained by his 
 son, caused capital punishment to be inflicted on him for 
 having engaged the enemy without orders.* But the differ- 
 ence of times and manners obliges a general to moderate such 
 severity. The mareschal Bellisle publicly reprimanded those 
 brave grenadiers, but secretly caused money to be distributed ,, 
 
 among them, as a reward for their courage and alacrity. At 
 another famous siege in the same war, that of Coni, the private 
 men of some battalions that were stationed in the fosses, 
 made, of their own accord, during the absence of their officers, 
 a vigorous sortie, which was attended with success. Baron 
 Leutrum was obliged to pardon their transgression, lest he 
 should damp an ardour on which the safety of the place en- 
 tirely depended. Such inordinate impetuosity should never- 
 theless be checked as far as possible ; since it may eventually 
 be productive of fatal consequences. Avidius Cassius inflicted 
 
 * Tit Liv. lib. viii. cap. vii. 
 
 2T 517
 
 402 OF THE EIGHT OF PRIVATE PERSONS IN WAR. 
 
 BOOK in. capital punishment on some officers of his army, -who had, 
 CHAP, xv. w j t h out orders, marched forth at the head of a handful of 
 men, to surprise a body of three thousand enemies, and had 
 succeeded in cutting them to pieces. This rigour he justified, 
 by saying that there might have been an ambuscade, dicens, 
 evenire potuisse ut essent insidice, <fv?.* 
 
 g 232. whe- Is the state bound to indemnify individuals for the damages 
 ther the ^hey have sustained in war ? We may learn from Grotius 
 * na ^ au thors are divided on this question.f The damages 
 ify the under consideration are to be distinguished into two kinds, 
 subjects for those done by the state itself or the sovereign, and those done 
 damages j^y ^g enem y. Qf the first kind, some are done deliberately 
 war^aso) 111 anc ^ ^J way of precaution, as, when a field, a house, or a 
 garden, belonging to a private person, is taken for the pur- 
 pose of erecting on the spot a town rampart, or any other 
 \_ 403 ] piece of fortification, or when his standing corn or his store- 
 houses are destroyed, to prevent their being of use to the 
 enemy. Such damages are to be made good to the individual, 
 who should bear only his quota of the loss.(181) But there 
 a*e other damages, caused by inevitable necessity, as, for 
 instance, the destruction caused by the artillery in retaking a 
 town from the enemy. These are merely accidents, they 
 are misfortunes which chance deals out to the proprietors on 
 whom they happen to fall. The sovereign, indeed, ought to 
 show an equitable regard for the sufferers, if the situation of 
 his affairs will admit of it : but no action lies against the state 
 for misfortunes of this nature, for losses which she has occa- 
 sioned, not wilfully, but through necessity and by mere acci- 
 dent, in the exertion of her rights. The same may be said 
 of damages caused by the enemy. All the subjects are ex- 
 posed to such damages : and wo to him on whom they fall ! 
 The members of a society may well encounter such risk of 
 property, since they encounter a similar risk of life itself. 
 Were the state strictly to indemnify all those whose property 
 is injured in this manner, the public finances would soon be 
 exhausted ; and every individual in the state would be obliged 
 to contribute his share in due proportion, a thing utterly 
 impracticable. Besides, these indemnifications would be liable 
 to a thousand abuses, and there would be no end of the par- 
 
 * Volcatius Gallicanus, quoted by tain, the regulating act, 59 G. 3, 
 
 Grotius, book iii. chap, xviii. g i. n. 6. c. xxxi. was passed. See discussions 
 
 (180) On the conclusion of the late in Hill v. Beardon, 2 Russell's Rep. 
 
 war between Great Britain and France, 608. C. 
 it was stipulated that the latter should f Lib. iii. cap. xx. viii. 
 make compensation for the amount of (181) It is legal to take possession 
 
 the confiscations of British property, of these for the benefit of the commu- 
 
 subject to certain qualifications ; and nity, and no action lies for compensa- 
 
 commissioners were appointed by each tion, nor is any recoverable, unless 
 
 state to examine and adjudicate upon given by act of parliament. 4 Term 
 
 the claims, and as regarded Great Bri- Rep. 382. C. 
 618
 
 OF VARIOUS CONVENTIONS, ETC. 403 
 
 ticulars. It is therefore to be presumed that no such thing BOOK m. 
 was ever intended by those who united to form a society. CHAP, xv. 
 
 But it is perfectly consonant to the duties of the state and 
 the sovereign, and, of course, perfectly equitable, and even 
 strictly just, to relieve, as far as possible, those unhappy 
 sufferers who have been ruined by the ravages of war, (182) 
 as likewise to take care of a family whose head and support 
 has lost his life in the service of the state. There are many 
 debts which are considered as sacred by the man who knows 
 his duty, although they do not afford any ground of action 
 against him.* 
 
 CHAP. XVI. 
 
 OF VARIOUS CONVENTIONS MADE DURING THE COURSE OF CHAP. XYI. 
 THE WAR. 
 
 WAR would become too cruel and destructive, were all 233. 
 intercourse between enemies absolutely broken off. Accord- Truce a ? d 
 ing to the observation of Grotius,f there still subsists a 
 friendly intercourse in war, as Virgil j and Tacitus have ex- 
 pressed it. The occurrences and events of war lay enemies 
 under the necessity of entering into various conventions. 
 As we have already treated in general of the observance of 
 faith between enemies, it is unnecessary for us in this place 
 to prove the obligation of faithfully acting up to those con- 
 ventions made in war : it therefore only remains to explain 
 
 (182) See note (180), p. 402. states-general adopted measures fraught 
 "* It is in general the indispensable with consummate wisdom. They pub- 
 duty of every sovereign to adopt the lished an edict, in which, after having 
 most efficacious measures for the pro- described the destructive consequences 
 tection of his subjects engaged in war, of the Spanish barbarity, they exhorted 
 in order that they may suffer by it as the Flemings to attend to their own 
 little as possible, instead of voluntarily preservation, and threatened to retaliate 
 exposing them to greater evils. During on all who should obey the cruel ordi- 
 the wars in the Netherlands, Philip the nance of Philip. By such conduct they 
 Second prohibited the release or ex- put an end to the dreadful proceedings 
 change of prisoners of war. He for- to which it had given birth. Edit A. D. 
 bade the peasants, under pain of death, 1797. 
 to pay any contributions with a view to f Lib. iii. cap. xxi. g i. 
 
 purchase an immunity from pillage and ^ Belli commercia 
 
 conflagration ; (183) and, under the Turnus 
 
 same penalty, prohibited the use of Sustulit ista prior. .35n. x. 532. 
 
 safeguards and protections. In oppo- | Ann. lib. xiv. cap. xxxiii. 
 sition to this barbarous ordinance, the 
 
 (183) Our enactments against ran- c. 72 ;) Marshall on Insurance, 431 ; but 
 soming ships or property taken by an exceptions in cases of extreme necessity 
 enemy are in the same spirit ; (22 Geo. may be allowed by the court of Ad- 
 2, c. 25; 43 Geo. 3, c. 165; 45 Geo. 3, miralty. Id. Ibid. 
 
 519
 
 404 OF VARIOUS CONVENTIONS, ETC. 
 
 BOOK ni. the nature of them. Sometimes it is agreed to suspend 
 CHAP, xvi. hostilities for a certain time ; and, if this convention be made 
 but for a very short period, or only regards some particular 
 place, it is called a cessation or suspension of arms. Such 
 are those conventions made for the purpose of burying the 
 dead after an assault or a battle, and for a parley, or a con- 
 ference between the generals >of the hostile armies. If the 
 agreement be for a more considerable length of time, and 
 especially if general, it is more particularly distinguished by 
 the appellation of a truce. Many people use both expressions 
 indiscriminately. 
 
 g 234. Does The truce or suspension of arms does not terminate the 
 not tenni- war . ft only suspends its operations. 
 
 nate th ^ truce is either partial or general. By the former, hos- 
 
 . 23 '. A tilities are suspended only in certain places, as between a 
 truce is town and the army besieging it. By the latter, they are to 
 either par- cease generally, and in all places, between the belligerent 
 tial or gene- powers. Partial truces may also admit of a distinction with 
 respect to acts of hostility, or to persons ; that is to say, the 
 parties may agree to abstain from certain acts of hostility 
 during a limited time, or two armies may mutually conclude 
 a truce or suspension of arms without regard to any particu- 
 lar place. 
 
 g 236. Ge- A general truce, made for many years, differs from a peace 
 
 nerai truce j n little else than in leaving the question which was the ori- 
 
 for many g} na } ground of the war still undecided. When two nations 
 
 are weary of hostilities, and yet cannot agree on the point 
 
 which constitutes the subject of their dispute, they generally 
 
 have recourse to this kind of agreement. Thus, instead of 
 
 peace, long truces only have usually been made between the 
 
 [ 405 ] Christains and the Turks, sometimes from a false spirit of 
 
 religion ; at other times, because neither party were willing 
 
 to acknowledge the other as lawful owners of their respective 
 
 possessions. 
 
 g 237. By It is necessary to the validity of an agreement, that it be 
 whom these made by one who possesses competent powers. Every thing 
 ma^he^on ^ one * n war IS done by the authority of the sovereign, who 
 eluded! C0n ~ a ^ one nas the right both of undertaking the war, and direct- 
 ing its operations. ( 4) But, from the impossibility of exe- 
 cuting every thing by himself, he must necessarily communi- 
 cate part of his power to his ministers and officers. The 
 question, therefore, is, to determine what are the things of 
 which the sovereign reserves the management in his own 
 hands, and what those are which he is naturally presumed to 
 intrust to the ministers of his will, to the generals and other 
 officers employed in military operations. We have above 
 (Book II. 207) laid down and explained the principle which 
 is to serve as a general rule on this subject. If the sovereign 
 has not given any special mandate, the person commanding 
 in his name is held to be invested with all the powers neces- 
 
 520
 
 OF VARIOUS CONVENTIONS, ETC. 405 
 
 sary for the reasonable and salutary exercise of his functions, BOOK m. 
 for every thing which naturally follows from his commission. . CHAP - XYr - 
 Every thing beyond that is reserved to the sovereign, who is 
 not supposed to have delegated a greater portion of his power 
 than is necessary for the good of his affairs. According to 
 this rule, a general truce can only be concluded by the sove- 
 reign himself, or by some person on whom he has expressly 
 conferred a power for that purpose. For, it is by no means 
 necessary to the success of the war, that a general should be 
 invested with such an extensive authority : it would exceed 
 the limits of his functions, which consist in directing the mili- 
 tary operations in the place where he has the command, and 
 not in regulating the general interests of the state. The 
 conclusion of a general truce is a matter of so high import- 
 ance, that the sovereign is always presumed to have reserved 
 it in his own hands. So extensive a power suits only the 
 viceroy or governor of a distant country, for the territories 
 under him ; and even in this case, if the truce be for a num- 
 ber of years, it is natural to suppose the sovereign's ratifica- 
 tion necessary. The Roman consuls, and other commanders, 
 had a power to grant general truces for the term of their 
 commission ; but, if that term was considerable, or the truce 
 made for a longer time, it required the ratification of the 
 senate and people. Even a partial truce, when for a long 
 time, seems also to exceed the ordinary powers of a general ; 
 and he can only conclude it under a reservation of its being 
 ratified by the sovereign authority. 
 
 But, as to partial truces for a short period, it is often ne- 
 cessary, and almost always proper, that the general should 
 have a power to conclude them : it is necessary, when he can- 
 not wait for the sovereign's consent ; it is proper on those 
 occasions when the truce can only tend to spare the effusion 
 of blood, and to promote the mutual advantage of the con- 
 tracting parties. With such a power, therefore, the general 
 or commander in chief is naturally supposed to be invested. [ 406 ] 
 Thus, the governor of a town, and the general besieging it, 
 may agree on a cessation of arms, for the purpose of burying 
 the dead, or of coming to a parley: they may even settle a 
 truce for some months, on condition that the town, if not 
 relieved within that time, shall surrender, &c. Conventions 
 of this kind only tend to mitigate the evils of war, and are 
 not likely to prove detrimental to any one. 
 
 All these truces and suspensions of arms are concluded by g 238. The 
 the authority of the sovereign, who consents to some of them sovereign's 
 in his own person, and to others through the ministry of Ws^/in 
 generals and officers. His faith is pledged by such agree- them> 
 ments, and he is bound to enforce their observance. 
 
 The truce binds the contracting parties from the moment f 239. When 
 of its being concluded, but cannot have the force of a law, 
 with regard to the subjects on both sides, till it has been so- 
 
 66 2i2 521
 
 406 OF VARIOUS CONVENTIONS, ETC. 
 
 BOOK m. lemnly proclaimed : and, as an unknown law imposes no obh- 
 CHAP. XVI - g a tion, the truce does not become binding on the subjects 
 begins to be Qn ^{\ <j u i v notified to them. Hence, if, before they can have 
 o hgatory. |jj. a i ne( j certain information of its being concluded, they com- 
 mit any act contrary to it any act of hostility they are not 
 punishable. But, as the sovereign is bound to fulfil his 
 promises, it is incumbent on him to cause restitution to be 
 made of all prizes taken subsequent to the period when the 
 truce should have commenced. The subjects who, through 
 ignorance of its existence, have failed to observe it, are not 
 obliged to offer an indemnification, any more than their sove- 
 reign, who was unable to notify it to them sooner : the non- 
 observance of the truce, in this case, is merely an accident, 
 not imputable to any fault on his part or on theirs. A ship 
 being out at sea at the time when the truce is published, meets 
 with a ship belonging to the enemy, and sinks her : as there is no 
 guilt in this case, she is not liable to pay any damage. If she 
 has made a capture of the vessel, all the obligation she lies 
 under is to restore the prize, as she must not retain it in vio- 
 lation of the truce. But those who should, through their own 
 fault, remain ignorant of the publication of the truce, would 
 be bound to repair any damage they had caused, contrary to 
 its tenor. The simple commission of a fault, and especially 
 of a slight one, may, to a certain degree, be suffered to pass 
 with impunity ; and it certainly does not deserve to be pu- 
 nished with equal severity as a premeditated transgression : 
 but it furnishes no plea against the obligation to repair the 
 damages accruing. In order, as far as possible, to obviate 
 every difficulty, it is usual with sovereigns, in their truces as 
 well as in their treaties of peace, to assign different periods 
 for the cessation of hostilities, according to the situation and 
 distance of places. 
 
 g 240. Pub- Since a truce cannot be obligatory on the subjects unless 
 lication of k nown to them, it must be solemnly published in all the places 
 the truce. w here it is intended that it should be observed, 
 g 241. Sub- If any of the subjects, whether military men or private 
 jects con- citizens, offend against the truce, this is no violation of the 
 thTJ^f public faith ; nor is the truce thereby broken. But the de- 
 linquents should be compelled to make ample compensation 
 for the damage, and severely punished. Should their sove- 
 [ 407 ] reign refuse to do justice, on the complaints of the party injured, 
 he thereby becomes accessory to the trespass, and violates 
 the truce. 
 
 g 242. Vio- Now, if one of the contracting parties, or any person by 
 lation of n i s order, or even with his simple consent, commits any act 
 the truce. con t r ary to the truce, it is an injury to the other contracting 
 party : the truce is dissolved ; and the injured party is en- 
 titled immediately to take up arms, not only for the purpose 
 of renewing the operations of the war, but also of avenging 
 the recent injury offered to him. 
 
 522
 
 OF VARIOUS CONVENTIONS, ETC. 407 
 
 Sometimes a penalty on the infractor of * the truce is BOOK m. 
 reciprocally stipulated; and then the truce is not imme- CHAP ' * YI ' 
 
 diately broken on the first infraction. If the party offending ? 243. Sti- 
 submits to the penalty, and repairs the damage, the truce P ulation of 
 still subsists, and the offended party has nothing further to aga^st'the 
 claim. But, if an alternative has been agreed on, viz. that, infractor. 
 in case of an infraction, the delinquent shall suffer a certain 
 penalty, or the truce shall be broken, it is the injured party 
 who has the choice of insisting on the penalty or taking 
 advantage of his right to recommence hostilities : for, if this 
 were left at the option of the infractor, the stipulation of 
 the alternative would be nugatory, since, by refusing to 
 submit to the penalty simply stipulated, he would break the 
 compact, and thereby give the injured party a right to take 
 up arms again. Besides, in cautionary clauses of this 
 kind, the alternative is not supposed to be introduced in 
 favour of him who fails in his engagements ; and it would 
 be absurd to suppose that he reserves to himself the ad- 
 vantage of breaking them by his infraction rather than un- 
 dergo the penalty. He might as well break them at once 
 openly. The only object of the penal clause is to secure 
 the truce from being so easily broken ; and there can be no 
 other reason for introducing it with an alternative, than that 
 of leaving to the injured party a right, if he thinks fit, to 
 dissolve a compact from which the behaviour of the enemy 
 shows him he has little security to expect. 
 
 It is necessary that the time of the truce be accurately ? 244. Time 
 specified, in order to prevent all doubt or dispute respecting of the truce - 
 the period of its commencement, and that of its expiration. 
 The French language, extremely clear and precise, for 
 those who know how to use it with propriety, furnishes 
 expressions which bid defiance to the most subtle chicanery. 
 The words "inclusively" and "exclusively" banish all 
 ambiguity which may happen to be in the convention, with 
 regard to the two terms of the truce its beginning and 
 end. For instance, if it be said that " the truce shall last 
 from the first of March inclusively, until the fifteenth of 
 April, also inclusively," there can remain no doubt ; whereas, 
 if the words had simply been, " from the first of March until 
 the 15th of April," it might be disputed whether those [ 408 ] 
 two days, mentioned as the initial and final terms of the 
 truce, were comprehended in the treaty or not : and indeed 
 authors are divided on this question. As to the former of 
 those two days, it seems, beyond all question, to be com- 
 prised in the truce : for, if it be agreed, that there shall be a 
 truce from the first of March, this naturally means that 
 hostilities shall cease on the first of March. As to the 
 latter day, there is something more of doubt, the ex- 
 pression "until" seeming to separate it from the time of the 
 armistice. However, as we often say " until" such a day 
 
 523
 
 408 OF VAKIOUS CONVENTIONS, ETC. 
 
 BOOK HI. "inclusively," the word "until" is not necessarily exclusive, 
 CHAP. XTI. accor dj D g to the genius of the language. And as a truce 
 which spares the effusion of human blood, is no doubt a 
 thing of a favourable nature, perhaps the safest way is to 
 include in it the very day of the term. Circumstances may 
 also help to ascertain the meaning : but it is very wrong not 
 to remove all ambiguity, when it may be done by the addi- 
 tion of a single word. 
 
 In national compacts, the word "day" is to be understood 
 of a natural day, since it is in this meaning that a day is the 
 common measure of time among nations. The computation 
 by civil days days owes its origin to the civil law of each nation, 
 and varies in different countries. The natural day begins 
 at sunrise, and lasts twenty-four hours, or one diurnal re- 
 volution of the sun. If, therefore, a truce of a hundred 
 days be agreed on, to begin on the first of March, the truce 
 begins at sunrise on the first of March, and is to continue a 
 hundred days of twenty-four hours each. But, as the sun 
 does not rise at the same hour throughout the whole year, 
 the parties, in order to avoid an overstrained nicety, and a 
 degree of chicane unbecoming that candour which should 
 prevail in conventions of this kind, ought certainly to un- 
 derstand that the truce expires, as it began, at the rising of 
 the sun. The term of a day is meant from one sun to the 
 other, without quibbling or disputing about the difference 
 of a few minutes in the time of his rising. He who, having 
 made a truce for a hundred days, beginning on the twenty- 
 first of June, when the sun rises about four o'clock, should, 
 on the day the truce is to end, take up arms at the same 
 hour, and surprise his enemy before sunrise, would certainly 
 be considered as guilty of a mean and perfidious chicanery. 
 
 If no term has been specified for the commencement of the 
 truce, the contracting parties, being bound by it immediately 
 on its conclusion ( 239), ought to have it published without 
 delay, in order that it may be punctually observed : for, it 
 becomes binding on the subjects only from the time when 
 it is duly published with respect to them (Ibid.) ; and it 
 begins to take effect only from the moment of the first pub- 
 lication, unless otherwise settled by the terms of the agree- 
 ment. 
 
 g 245. Ef- The general effect of a truce is that every act of hostility 
 fects of a shall absolutely cease. And, in order to obviate all dispute 
 ^ uc ^J e h d at respecting the acts which may be termed hostile, the general 
 or not. W <iur- ru ^ e * s > tnat > during the truce, each party may, within his 
 ing its con- own territories, and in the places where he is master, do 
 tinuance. whatever he would have a right to do in time of profound 
 1st Rule : p eace . Thus, a truce does not deprive a sovereign of the 
 ma, dcTat 7 li Der ty of levying soldiers, assembling an army in his own 
 home what dominions, marching troops within the country, and even 
 they hare a calling in auxiliaries, or repairing the fortifications of a town 
 
 524
 
 OF VARIOUS CONVENTIONS, ETC. 409 
 
 which is not actually besieged. As he has a right to do all BOOK m. 
 these things in time of peace, the truce does not tie up his cnAP - XYI i 
 hands. Can it be supposed that, by such a compact, he meant fight to do 
 to debar himself from executing things which the continuation in time of 
 of hostilities could not prevent him from doing ? 
 
 But to take advantage of the cessation of arms in order to 246. 2d 
 execute without danger certain things which are prejudicial Rule = Not 
 to the enemy, and which could not have been safely under- to take ad ~ 
 taken during the continuance of hostilities, is circum venting ^truce^n 
 and deceiving the enemy with whom the compact has been doing what 
 made : it is a breach of the truce. By this second general hostilities 
 rule we may solve several particular cases. 
 
 The truce concluded between the governor of a town and f^ n ^ 
 the general besieging it, deprives both of the liberty of con-j nstance 
 tinuing their works. With regard to the latter, this is mani- continuing 
 fest, his works being acts of hostility. But neither can the the works 
 governor, on his part, avail himself of the armistice, for the of a sie . s f f 
 purpose of repairing the breaches or erecting new fortifica- J^che* 
 tions. The artillery of the besiegers does not allow him to 
 carry on such works with impunity during the continuance of 
 hostilities : it would therefore be detrimental to them that he 
 should employ the truce in this manner : and they are under 
 no obligation of submitting to be so far imposed upon : they 
 will with good reason consider such an attempt as an infrac- 
 tion of the truce. But the suspension of arms does not hinder 
 the governor from continuing within his town such works as 
 were not liable to be impeded by the attacks or fire of the 
 enemy. At the last siege of Tournay, after the surrender of 
 the town, an armistice was agreed on ; during the continuance 
 of which, the governor permitted the French to make all the 
 necessary preparations for attacking the citadel, to carry on 
 their works, and erect their batteries, because the governor, 
 on his part, was in the mean time busily employed within, in 
 clearing away the rubbish with which the blowing up of a ma- 
 gazine had filled the citadel, and was erecting batteries on the 
 ramparts. But all this he might have performed with little 
 or no danger, even if the operations of the siege had com- 
 menced ; whereas the French could not have carried on their 
 works with such expedition, or made their approaches and 
 erected their batteries without losing a great number of men. 
 There was therefore no equality in the case ; and, on that 
 footing, the truce was entirely in favour of the besiegers : and, 
 in consequence of it, the capture of the citadel took place 
 sooner, probably, by a fortnight, than it would otherwise have 
 happened. 
 
 If the truce be concluded either for the purpose of settling g 248. or 
 the terms of the capitulation or of waiting for the orders of introducing 
 the respective sovereigns, the besieged governor cannot make succours ' 
 use of it as a convenient opportunity to introduce succours or 
 ammunition into the town : for, this would be taking an undue 
 
 525
 
 410 OF VARIOUS CONVENTIONS, ETC. 
 
 BOOK in. advantage of the armistice for the purpose of deceiving the 
 
 CHAP, xvi. enem y a conduct which is inconsistent with candour and 
 
 honesty. The spirit of such a compact evidently imports 
 
 that all things shall remain as they were at the moment of its 
 
 conclusion. 
 
 249. Dis- But this is not to be extended to a suspension of arms 
 tinction of a a g ree ^ on f or S0 me particular 'circumstance, as, for instance, 
 case! burying the dead. In this case, the truce is to be interpreted, 
 with a view to its immediate object. Accordingly, the firing 
 ceases, either in all quarters, or only in a single point of 
 attack, pursuant to agreement, that each party may freely 
 carry off their dead : and during this intermission of the can- 
 nonade, it is not allowable to carry on any works which the 
 firing would have impeded. This would be taking an undue 
 advantage of the armistice, and consequently a violation of 
 it. But it is perfectly justifiable in the governor, during 
 such a cessation of hostilities, silently to introduce a reinforce- 
 ment in some quarter remote from the point of attack. If the 
 besieger, lulled by such an armistice, abates in his vigilance, 
 he must abide the consequences. The armistice of itself does 
 not facilitate the entrance of that reinforcement. 
 
 g 250. Re- Likewise, if an army in a bad position proposes and con- 
 treat of an c i u( j es an armistice for the purpose of burying the dead after 
 iTsus en" 03 a Da *^ e j it cannot pretend, during the suspension of arms, to 
 sion of hos- extricate itself from its disadvantageous situation, and to 
 tilities. march off unmolested, in sight of the enemy. This would be 
 availing itself of the compact in order to effect a purpose 
 which it could not otherwise have accomplished. This would 
 be laying a snare : and conventions must not be converted 
 into snares. The enemy, therefore, may justly obstruct the 
 motions of that army the moment it attempts to quit its sta- 
 tion : but, if it silently files off in the rear, and thus reaches 
 a safer position, it will not be guilty of a breach of faith ; 
 since nothing more is implied by a suspension of arms for the 
 burial of the dead, than that neither party shall attack the 
 other whilst this office of humanity is performing. The 
 enemy, therefore, can only blame his own remissness : he 
 ought to have stipulated, that, during the cessation of hosti- 
 lities, neither party should quit their post: or it was his bu- 
 siness vigilantly to watch the motions of the hostile army : 
 and on perceiving their design, he was at liberty to oppose it. 
 It is a very justifiable stratagem to propose a cessation of 
 arms for a particular object, with a view of lulling the enemy's 
 vigilance, and covering a design of retreating. 
 
 But, if the truce be not made for any particular object 
 alone, we cannot honourably avail ourselves of it in order to 
 gain an advantage, as, for instance, to secure an important 
 post, or to advance into the enemy's country. The latter 
 step would indeed be a violation of the truce ; for, every advance 
 into the enemy's country is an act of hostility. 
 
 526
 
 OF VARIOUS CONVENTIONS, ETC. 411 
 
 Now, as a truce suspends hostilities without putting an end BOOK m. 
 to the war, every thing must, during the continuance of the , 
 
 CHA 
 
 truce, be suffered to remain in its existing state, in all places g 251. 3d 
 of which the possession is contested : nor is it lawful, in such Rule ^No- 
 places, to attempt any thing to the prejudice of the enemy. thing to be 
 This is a third general rule. T C ^L 
 
 When the enemy withdraws his troops from a place, and places, but 
 absolutely quits it, his conduct sufficiently shows that he does every thing 
 not intend to occupy it any longer: and in this case we may^^ieftas 
 lawfully take possession of it during the truce. But if, by J ^ 
 any indication, it appears that a post, an open town, or a 252 - Places 
 village, is not relinquished by the enemy, and that, though n" 1 "^^ 
 he neglects to keep it guarded, he still maintains his rights ^f enemy/ 
 and claims to it, the truce forbids us to seize upon it. To 
 take away from the enemy what he is disposed to retain, is 
 an act of hostility. 
 
 It is also an undoubted act of hostility to receive towns or g 253. Sub- 
 provinces inclined to withdraw from the sovereignty of the jects in- 
 enemy, and give themselves up to us. We therefore cannot clined io . re ~ 
 receive them during the continuance of the truce, which wholly thei/prince 
 suspends all hostile proceedings. not to be re- 
 
 Far more unlawful it is, during that period, to instigate the ceived dur- 
 subjects of the enemy to revolt, or to tamper with the fidelity ing the 
 of his governors and garrisons. These are not only hostile truce ' 
 proceedings, but odious acts of hostility ( 180). As to de- | e 2 g 5 *; uch 
 serters and fugitives, they may be received during the truce, solicited to 
 since they are received even in time of peace, when there is treason. 
 no treaty to the contrary. And, even if such a treaty did 
 exist, its effect is annulled, or at least suspended, by the war 
 which has since taken place. 
 
 To seize persons or things belonging to the enemy, when 255. Per- 
 he has not, by any particular fault on his side, afforded us sons or ef - 
 grounds for such seizure, is an act of hostility, and conse- ^f n ^ t e e " 
 quently not allowable during a truce. be geized 
 
 Since the right of postliminium is founded only on the during the 
 state of war (Chap. XIV. of this Book), it cannot take effect t 06 - 
 during the truce, which suspends all the acts of war, and ? 256. Right 
 leaves every thing in its existing state ( 251). Even pri- f P stlimi - 
 soners cannot during that season withdraw from the power ^ m c 
 
 truce. 
 
 of the enemy, in order to recover their former condition : for 
 the enemy has a right to detain them while the war continues ; 
 and it is only on its conclusion that his right over their liberty 
 expires ( 148). 
 
 During the truce, especially if made for a long period, it ? 257. in- 
 is naturally allowable for enemies to pass and repass to and tercourse 
 from each other's country, in the same manner as it is allowed J^g a 
 in time of peace, since all hostilities are now suspended. But truce, 
 each of the sovereigns is at liberty, as he would be in time of 
 peace, to adopt every precaution which may be necessary to 
 pi event this intercourse from becoming prejudicial to him. 
 
 527
 
 412 OF VARIOUS CONVENTIONS, ETC. 
 
 BOOK ni. He has just grounds of suspicion against people with whom 
 CHAP, xvr. ^ j g goon to recommence hostilities. He may even declare, 
 at the time of making the truce, that he will admit none of 
 the enemy into any place under his jurisdiction. 
 
 3 258. Per- Those who, having entered the enemy's territories during 
 sons de- the truce, are detained there by sickness or any other unsur- 
 tained by mountable obstacle, and thus Happen to remain in the country 
 a ^ ter the expiration of the armistice, may in strict justice be 
 , kept prisoners : it is an accident which they might have fore- 
 after the ex- seen, and to which they have of their own accord exposed 
 piration of themselves ; but humanity and generosity commonly require 
 the truce. ^^ ^gy s h ou ld be allowed a sufficient term for their de- 
 parture. 
 
 g 259. Par- If the articles of truce contain any conditions either more 
 
 ticuiar con- extensive or more narrowly restrictive than what we have 
 
 rttotonMa ^ ere ^ a ^ down, *he transaction becomes a particular conven- 
 
 es * tion. It is obligatory on the contracting parties, who are 
 
 bound to observe what they have promised in due form : and 
 
 the obligations thence resulting constitute a conventional 
 
 right, the detail of which is foreign to the plan of this work. 
 
 260. At As the truce only suspends the effects of war ( 233), the 
 
 the expira- moment it expires, hostilities may be renewed without any 
 
 tion of the f resn declaration of war : for every one previously knows that 
 
 war Is M! fr m tliat i nstant tne war w iU resume its course ; and the 
 
 newed with- reasons for the necessity of a declaration are not applicable 
 
 out any to this Case ( 51). 
 
 fresh decia- jj u t a truce of many years very much resembles a peace, 
 
 ration. an( j on j^ ^g^g f rom ft [ n leaving the subject of the war still 
 undecided. Now, as a considerable lapse of time may have 
 effected a material alteration in the circumstances and dis- 
 positions of both the parties, the love of peace, so becoming 
 in sovereigns, the care they should take to spare their sub- 
 jects' blood, and even that of her enemies, these dispositions, 
 I say, seem to require that princes should not take up arms 
 again at the expiration of a truce in which all military pre- 
 paratives had been totally laid aside and forgotten, without 
 making some declaration which may invite the enemy to pre- 
 vent the effusion of blood. The Romans have given us an 
 example of this commendable moderation. They had only 
 made a truce with the city of Veii ; and the enemy even 
 renewed hostilities before the stipulated time was elapsed. 
 Nevertheless, at the expiration of the term, the college of the 
 feciales gave it as their opinion that the Romans should send 
 to make a formal demand of satisfaction, previous to their 
 taking up arms again.* 
 
 261. Ca- The capitulations on the surrender of towns are among 
 .ituiations; ^ p r i nc }p a j conventions made between enemies during the 
 
 whon/they co urse f war - They are usually settled between the general 
 
 may be con- ' 
 
 eluded. * Tit. Liv. lib. ir. cap. 30. 
 
 528
 
 c p K 
 
 OP VAKIOUS CONVENTIONS, ETC. 412 
 
 of the besieging army and the governor of the besieged town, 
 both acting in virtue of the authority annexed to their respec- 
 tive posts or commissions. 
 
 We have elsewhere (Book II. Ch. XIV.) laid down the 
 principles of that authority which is vested in the subordinate 
 powers, together with general rules to aid in forming a deci- [ 413 ] 
 sion respecting it. All this has recently been recapitulated 
 in a few words, and particularly applied to generals and other 
 military commanders in chief ( 237). Since the general of 
 an army, and the governor of a town, must naturally be 
 invested with all the powers necessary for the exercise of their 
 respective functions, we have a right to presume that they 
 possess those powe^sj and that of concluding a capitulation 
 is certainly one or tlie number, especially when they cannot 
 wait for the sovereign's order. A treaty made by them on 
 that subject is therefore valid, and binds the sovereigns in 
 whose name and by whose authority the respective com- 
 manders have acted. 
 
 But let it be observed, that, if those officers do not mean I 262. 
 to exceed their powers, they should scrupulously confine Clau8es 
 themselves within the limits of their functions, and forbear to ^^ m 
 meddle with things which have not been committed to their 
 charge. In the attack and the defence, in the capture or the 
 surrender of a town, the possession alone is the point in ques- 
 tion, and not the property and right : the fate of the garrison 
 is also involved in the transaction. Accordingly, the com- 
 manders may come to an agreement respecting the manner 
 in which the capitulating town shall be possessed : the besieg- 
 ing general may promise that the inhabitants shall be spared, 
 and permitted to enjoy their religion, franchises, and privi- 
 leges : and, as to the garrison, he may allow them to march 
 out with their arms and baggage, with all the honours of 
 war, to be escorted and conducted to a place of safety, &c. 
 The governor of the town may deliver it up at discretion, if 
 reduced to that extremity by the situation of affairs : he may 
 surrender himself and his garrison prisoners of war, or engage, 
 that, for a stipulated time, or even to the end of the war, they 
 shall not carry arms against the same enemy, or against his 
 allies : and the governor's promise is valid and obligatory on 
 all under his command, who are bound to obey him while he 
 keeps within the limits of his functions ( 23). 
 
 But, should the besieging general take on him to promise 
 that his sovereign shall never annex the conquered town to 
 his own dominions, or shall, after a certain time, be obliged 
 to restore it, he would exceed the bounds of his authority, 
 in entering into a contract respecting matters which are not 
 intrusted to his management. And the like may be said of 
 a governor who in the capitulation should proceed to such 
 lengths as for ever to alienate the town which he commands, 
 and to deprive his sovereign of the right to retake it, 
 
 67 2 U 529
 
 413 OF VAKIOUS CONVENTIONS, ETC. 
 
 BOOK m. who should promise that his garrison shall never carry arms, 
 jgAp. xvr. not even - m ano ther war. His functions do not give him so 
 extensive a power. If, therefore, in the conferences for a 
 capitulation, either of the hostile commanders should insist 
 on conditions which the other does not think himself em- 
 powered to grant, they have still one expedient left, which is, 
 to agree to an armistice, during which every thing shall con- 
 [ 414 ] tinue in its present state, until they have received orders from 
 
 higher authority. 
 
 263. Ob- At the beginning of this chapter we have given the reasons 
 servanco of wn y we thought it unnecessary to prove in this place that all 
 tfons^and * nese conventions made during the course of the war, are to 
 its utility, he inviolably adhered to. We shall therefore only observe, 
 with respect to capitulations in particular, that, as it is unjust 
 and scandalous to violate them, so the consequences of such 
 an act of perfidy often prove detrimental to the party who 
 has been guilty of it. What confidence can thenceforward 
 be placed in him ? The towns which he attacks will endure 
 the most dreadful extremities, rather than place any depend- 
 ence on his word. He strengthens his enemies by compelling 
 them to make a desperate defence ; and every siege that he 
 is obliged to undertake will become terrible. On the con- 
 trary, fidelity attracts confidence and affection ; it facilitates 
 enterprises, removes obstacles, and paves the way to glorious 
 successes. Of this, history furnishes us a fine example in 
 the conduct of George Baste, general of the imperialists in 
 1602, against Battory and the Turks. The insurgents of 
 Battory's party having gained possession of Bistrith, other- 
 wise called Nissa, Baste recovered the town by a capitulation, 
 which in his absence was violated by some German soldiers : 
 but, being informed of the transaction on his return, he imme 
 diately hanged up all the soldiers concerned, and out of his 
 own purse paid the inhabitants all the damages they had sus- 
 tained. This action had so powerful an influence on the 
 minds of the rebels, that they all submitted to the emperor, 
 without demanding any other surety than the word of General 
 Baste.* 
 
 ? 264. Pro- Individuals, whether belonging to the army or not, who 
 mises made happen singly to fall in with the enemy, are, by the urgent 
 to the one- necess ^y of the circumstance, left to their own discretion, and 
 dividual. ma ji so f ar as concerns their own persons, do every thing 
 which a commander might do with respect to himself and the 
 troops under his command. If, therefore, in consequence of 
 the situation in which they are involved, they make any pro- 
 mise, such promise (provided it do not extend to matters which 
 can never lie within the sphere of a private individual) is valid 
 and obligatory, as being made with competent powers. For, 
 when a subject can neither receive his sovereign's orders nor 
 
 * SvOlj's MtsmoiM, by M. de 1'Eclmse, voL iv. p. 179.
 
 OF VARIOUS CONVENTIONS, ETC. 
 
 414 
 
 enjoy his protection, he assumes his natural rights, and is to BOOK m. 
 provide for his own safety by any just and honourable means CHAP- XY1 ' 
 in his power. (184) Hence, if that individual has promised 
 a sum for his ransom, the sovereign, so far from having a 
 power to discharge him from his promise, should oblige him 
 to fulfil it. The good of the state requires that faith should 
 be kept on such occasions, and that subjects should have this 
 mode of saving their lives or recovering their liberty. (185) 
 
 Thus, a prisoner who is released on his parole, is bound to [ 415 ] 
 observe it with scrupulous punctuality ; nor has the sovereign 
 a right to oppose such observance of his engagement : for, 
 had not the prisoner thus given his parole, he would not have 
 been released. 
 
 Thus, also, the country people, the inhabitants of villages 
 or defenceless towns, are bound to pay the contributions 
 
 (184) In general, all contracts in fa- 
 vour of alien enemies are, in Great 
 Britain, void, both at law and in equity ; 
 ( Williamson v. Patterson, 7 Taunton's 
 Rep. 439, 1 J. B. Moore, 333, S. C.j 
 2 Ves. & B. 332; ante, 321, n. (a), ); 
 unless the enemy come into this coun- 
 try sub salvo conductu, or live here by 
 the king's license; (Cowp. 163; 6 Term 
 Rep. 23; 2 Ves. & Beam. 332.) And 
 a bill drawn abroad by an alien enemy 
 on a British subject here, and endorsed 
 during war to a British subject volun- 
 tarily resident in the hostile country, 
 cannot bo enforced by the latter after 
 peace has been restored, because it was 
 illegal in its concoction ; ( Williamson v. 
 Patterson, ubi supra; 3 Bos. & Pul. 
 113 ; 3 Maule & Sel. 533.) But, upon 
 the principle above laid down by Vat- 
 tel, it was decided that where two 
 British subjects were declared prisoners 
 in France, and one of them drew a bill 
 in favour of the other on a third British 
 subject, resident in England, and such 
 payee endorsed the same in France to 
 an alien enemy it was held that the 
 transaction was legal, and that the 
 alien's right of action was only sus- 
 pended during the war; and that, on 
 the return of peace, he might recover 
 the amount from the acceptor; for, 
 otherwise, such persons would sustain 
 great privations during their detention : 
 and, for the same reason, it is no ob- 
 jection to an action on such bill, that 
 it is brought as to part in trust for an 
 alien enemy. Antoine v. Moorshead, 6 
 Taunt. 237, 447, 1 Marsh. Rep. 558, S. 
 C. Danbitg v. Moorshead, 6 Taunt. 332. 
 0. 
 
 (185) See the same principle and 
 reasoning, ante, g 174, p. 371-2. This 
 doctrine, as to ransom, and ransom-bills, 
 is recognised as part of the law of na- 
 tions, in 4 Bla. Com. 67; 1 Chitty's 
 Com. L., 32, 428. But the ransoming 
 of any ships, or merchandise on board 
 the same, and taken by an enemy of 
 Great Britain, is absolutely prohibited 
 by the English statutes, (22 Geo. 3, c. 
 25; 43 Geo. 3, c. 150; 45 Geo. 3, c. 
 72 ;) except in cases of extreme neces- 
 sity, continuing to be allowed by the 
 Court of Admiralty; and all contracts 
 for ransom, contrary to those statutes, 
 are declared void, and subjected to a 
 penalty of 500. See Marshall on In- 
 surances, 431. These ransom acts are 
 to be considered as remedial laws, and 
 must be construed liberally to meet the 
 mischief. Havelock v. Rockwood, 8 Term 
 Rep. 277 : Anthon v. Fisher, 2 Dougl. 
 649, n. ; Woodward v. Larkins, 3 Esp. 
 R. 266. And see decisions, Corme v. 
 Blackburne, 2 Dougl. 641; Webb v. 
 Brooke, 3 Taunt. 6 ; Teats v. Hall, and 
 Kelly v. Grant, 1 Term Rep. 73, 76. 
 And where the master of a British ship, 
 captured by an American, induced the 
 latter to release the vessel, on the for- 
 mer drawing a bill on England for 
 1000, by way of ransom, and the pay- 
 ment of which he countermanded in 
 time, he was even allowed to recover 
 from his owners compensation, in the 
 nature of salvage, for his services 
 morally speaking, constituting a per- 
 fidious breach of faith. Ship London, 
 2 Dodson's Rep. 74. C.
 
 415 OF SAFE-CONDUCTS 
 
 BOOK m. which they have promised in order to save themselves from 
 
 CHAP - XVI - pillage. (186) 
 
 Nay, more, a subject would even have a right to renounce 
 his country, if the enemy, being master of his person, refused 
 to spare his life on any other condition: for, when once the 
 society to which he belongs is unable to protect and defend 
 him, he resumes his natural rights. And besides, should he 
 obstinately refuse compliance, what advantage would the 
 state derive from his death ? Undoubtedly, while any hope 
 remains, while we have yet any means of serving our country, 
 it is our duty to expose ourselves and to brave every danger 
 for her sake. I here suppose that we have no alternative but 
 that of renouncing our country, or perishing without any ad- 
 vantage to her. If by our death we can serve her, it is noble 
 to imitate the heroic generosity of the Decii. But an engage- 
 ment to serve against our country, were it the only means of 
 saving our life, is dishonourable ; and a man of spirit would 
 submit to a thousand deaths, rather than make so disgraceful 
 a promise. 
 
 If a soldier, meeting an enemy in a by-place, makes him 
 prisoner, but promises him his life or liberty on condition of 
 his paying a certain ransom, this agreement is to be respected 
 by the superiors : for, it does not appear that the soldier, 
 left entirely to himself on that occasion, has in any particular 
 exceeded his powers. He might, on the other hand, have 
 thought it imprudent to attack that enemy, and, under that 
 idea, have suffered him to escape. Under the direction of his 
 superiors, he is bound to obey : when alone, he is left to his 
 own discretion. Procopius relates the adventure of two sol- 
 diers, the one a Goth and the other a Roman, who, being 
 fallen together into a pit, mutually promised each other that 
 their lives should be spared : and this agreement was approved 
 by the Goths.* 
 
 [ 416 ] CHAP. XVII. 
 
 CHAP. XYH. OF SAFE-CONDUCTS AND PASSPORTS, WITH QUESTIONS ON 
 THE KANSOM OF PRISONERS OF WAR. (187) 
 
 265. Na- SAFE-CONDUCTS and passports are a kind of privilege 
 ture of safe- insuring safety to persons in passing and repassing, or to cer- 
 and^ass * a * n things during their conveyance from one place to another. 
 
 port*. 
 
 (186) Same point, ante, 403, in note. (187) As to these, and Meditorra- 
 
 C. nean passes and licenses in general, 
 
 * Hist. Goth. lib. ii. cap. i. quoted by see 1 Chitty's Commercial Law, 492 
 
 Puffendorf, book viii. chap. vii. 14. 513. C. 
 532
 
 AND PASSPORTS, ETC. 416 
 
 From the usage and genius of the (French] language, it ap- BOOK m. 
 pears that the term "passport" is used, on ordinary occasions, CIIAP - xvn - 
 when speaking of persons who lie under no particular excep- 
 tion as to passing and repassing in safety, and to whom it is 
 only granted for greater security, and in order to prevent all 
 debate, or to exempt them from some general prohibition. 
 A safe-conduct is given to those who otherwise could not safely 
 pass through the places where he who grants it is master, 
 as, for instance, to a person charged with some misdemeanour, 
 or to an enemy. It is of the latter that we are here to treat. 
 
 All safe-conducts, like every other act of supreme com- 266. From 
 mand, emanate from the sovereign authority : but the prince wha * au - 
 may delegate to his officers the power of granting safe-con- ^nate* 167 
 ducts ; and they are invested with that power either by an 
 express commission, or by a natural consequence of the na- 
 ture of their functions. A general of an army, from the very 
 nature of his post, can grant safe-conducts : and, as they are 
 derived, though mediately, from the sovereign authority, the 
 other generals or officers of the same prince are bound to 
 respect them. 
 
 The person named in the safe-conduct cannot transfer his 267. Not 
 privilege to another : for he does not know whether it be a transferable 
 matter of indifference to the grantor of the safe-conduct that from one 
 another person should use it in his stead : and, so far from an^tiTer. 
 presuming that to be the case, he is even bound to presume 
 the contrary, on account of the abuses which might thence 
 result ; and he cannot assume to himself any further privilege 
 than was intended for him. If the safe-conduct is granted, 
 not for persons, but for certain effects, those effects may be 
 removed by others besides the owner. The choice of those 
 who remove them is indifferent, provided there do not lie 
 against them any personal exception sufficient to render them 
 objects of just suspicion in the eye of him who grants the 
 safe-conduct, or to exclude them from the privilege of enter- 
 ing his territories. 
 
 He who promises security by a safe-conduct, promises to $ 268. Ex- 
 afford it wherever he has the command, not only in his own tent of the 
 territories, but likewise in every place where any of his prom ! sed * 
 troops may happen to be : and he is bound, not only to for- soc 
 bear violating that security either by himself or his people, 
 but also to protect and defend the person to whom he has [ 417 ] 
 promised it, to punish any of his subjects who have offered 
 him violence, and oblige them to make good the damage.* 
 
 * At the famous interview at Pe- and negotiated their defection while he 
 ronne, Charles duke of Burgundy, ex- was at Peronne, Charles would have 
 asperated to find that Louis XI. had been justifiable in disregarding a safe- 
 engaged the people of Liege to take up conduct of which an improper use had 
 arms against him, paid no respect fo been made. But the French monarch 
 the safe-conduct which he had granted had despatched agents to Ghent for that 
 to that prince. If Louis had plotted purpose, before there was any question 
 2c2 533
 
 417 OF SAFE-CONDUCTS 
 
 BOOK III. 
 CHAP. XVII. 
 
 As the right arising from a safe-conduct proceeds entirely 
 from the will of him who grants it, that will is the standard 
 extent of the right is to be measured ; and the 
 
 u-eo 
 
 the right de- w ^ * s discoverable in the object for which the safe-conduct 
 rived from was granted. Consequently, a person who has barely ob- 
 a safo-cou- tained permission to go away, does not thence derive a right 
 duct. ^0 come back again ; and a safe-conduct, granted for the 
 
 simple passage through a country, does not entitle the bearer 
 to repass through it on his return. When the safe-conduct 
 is granted for a particular business, it must continue in force 
 until that business is concluded, and the person has had time 
 to depart: if it is specified to be granted for a journey, it 
 will also serve for the person's return, since both passage and 
 return are included in a journey. As this privilege consists 
 in the liberty of going and coming in safety, it differs from a 
 permission to settle in any particular place, and consequently 
 cannot give a right to stop anywhere for a length of time, 
 unless on some special business, in consideration of which 
 the safe-conduct was asked and granted. 
 
 g 270. Whe- A safe-conduct given to a traveller, naturally includes his 
 
 theritin- baggage, or his clothes, and other things necessary for his 
 
 g^and 3 j urne y> w ^ n even one or two domestics, or more, according 
 
 domestics, to the rank of the person. But, in all these respects, as well 
 
 as in the others which we have just noticed above, the safest 
 
 mode, especially when we have to do with enemies or other 
 
 suspected persons, is, to specify and distinctly enumerate the 
 
 particulars, in order to obviate every difficulty. Accordingly, 
 
 such is the practice which at present prevails ; and, in grant- 
 
 ing safe-conducts, it is the custom expressly to include the 
 
 baggage and domestics. 
 
 g 271. Safe- Though a permission to settle anywhere, granted to the 
 conduct father of a family, naturally includes his wife and children, 
 granted to it is otherwise with a safe-conduct; because it seldom hap- 
 does notTn- P ens * na * a man se ^les in a place without having his family 
 elude his fa- with him; whereas, on a journey, it is more usual to travel 
 nuly. without them. 
 
 g 272. Safe- A safe-conduct, granted to a person for himself and his 
 
 conduct retinue, cannot give him a right of bringing with him persons 
 
 SlV6 \'totiu~ J us ^y suspected by the state, or who have been banished, or 
 
 one and his 7 nave fled from the country on account of any crime ; nor can 
 
 retinue. it serve as a protection to such men : for, the sovereign who 
 
 grants a safe-conduct in those general terms, does not sup- 
 
 pose that it will be presumptuously abused for the purpose of 
 
 [ 418 ] bringing persons into his territories who have been guilty of 
 
 crimes, or have particularly offended him. 
 g 273. Term A safe-conduct, given for a stated term, expires at the end 
 
 of the safe- _ _ _ _ 
 conduct of ^Q mee ti n g a t Peronne ; and Charles, pected intelligence, committed a fla- 
 
 in the transports of blind resentment, grant breach of the law of nations. 
 
 excited by the disagreeable and uuex- 
 534
 
 AND PASSPORTS, ETC. 418 
 
 of the term specified therein ; and the bearer, if he does not BOOK m. 
 retire before that time, may be arrested, and even punished, CHAP - xyn - 
 according to circumstances, especially if he has given room 
 for suspicion by an affected delay. 
 
 But, if forcibly detained, as by sickness, so as to be un- 274. A per- 
 able to depart in time, a proper respite should be allowed son forcibly 
 him; for a promise of security has been made to him: and, ^dtife^" 
 though it was made only for a limited time, it is not by any term> 
 fault of his own that he has been prevented from departing 
 within the term. The case is different from that of an enemy 
 coming into our country during a truce : to the latter we 
 have made no particular promise : he, at his own peril, takes 
 advantage of a general liberty allowed by the suspension of 
 hostilities. All we have promised to the enemy is to forbear 
 hostilities for a certain time ; and, at the expiration of that 
 term, it is a matter of importance to us that we be at liberty 
 to let the war freely take its course, without being impeded 
 by a variety of excuses and pretexts. 
 
 The safe-conduct does not expire at the decease or depo- 275. The 
 sition of him who granted it ; for it was given in virtue of safe - conduct 
 the sovereign authority, which never dies, and whose efficacy^ 3 *^*" 
 exists independent of the person intrusted with the exercise death of him 
 of it. It is with this act as with other ordinances of the who gave it. 
 public power ; their validity or duration does not depend on 
 the life of him who enacted them, unless, by their very na- 
 ture, or by express declaration, they are personally confined 
 to him. 
 
 The successor, nevertheless, may revoke a safe-conduct, if 2 276. How 
 he has good reasons for the revocation. Even he who has lt a j be re " 
 granted it may, in like case, revoke it : nor is he always v 
 obliged to make known his reasons. Every privilege, when 
 it becomes detrimental to the state, may be revoked, a gra- 
 tuitous privilege, purely and simply, a purchased privilege, 
 on giving an indemnification to the parties concerned. Sup- 
 pose a prince or his general is preparing for a secret expe- 
 dition, must he suffer any person, under cover of a safe- 
 conduct, antecedently obtained, to come and pry into his 
 preparatives, and give the enemy intelligence of them ? But 
 a safe-conduct is not to be converted into a snare : if it be 
 revoked, the bearer must be allowed time and liberty to 
 depart in safety ._ If he, like any other traveller, be detained 
 for some time, in order to prevent his carrying intelligence 
 to the enemy, no ill-treatment is to be offered him ; nor is 
 he to be kept longer than while the reasons for his detainder 
 subsist. 
 
 If a safe-conduct contains this clause " For such time as $ 277. Safe- 
 we shall think fit," it gives only a precarious right, and is conduct 
 revocable every moment : but, until it has been expressly J 1 ^J he /br 
 revoked, it remains valid. It expires on the death of him LTLeL 
 who gave it, who, from that moment, ceases to will the con- 
 
 535
 
 419 OF SAFE CONDUCTS 
 
 BOOK in. tinuation of the privilege. But it must always be under- 
 CHAP. XYII. 8too j t k at> w ken a safe-conduct expires in this manner, 
 
 we shall the bearer is to be allowed a proper time for his safe de- 
 tunk ^ parture. 
 
 278. Con- After having discussed the right of making prisoners of 
 
 Mn""^ the war ' *ke obligation of the qaptor to release them at the 
 
 ransfm of peace, by exchange or ransom,' and that of their sovereign 
 
 prisoners, to obtain their liberty, it remains to consider the nature 
 
 of those conventions whose object is the deliverance of these 
 
 unfortunate sufferers. If the belligerent sovereigns have 
 
 agreed on a cartel for the exchange or ransom of prisoners, 
 
 they are bound to observe it with equal fidelity as any other 
 
 convention. But if (as was frequently the practice in former 
 
 times) the state leaves to each prisoner, at least during the 
 
 continuance of the war, the care of redeeming himself such 
 
 private conventions present a number of questions, of which 
 
 we shall only touch on the principal ones. 
 
 279. The He who has acquired a lawful right to demand a ransom from 
 
 right of de- j^g prisoner, may transfer his right to a third person. This 
 
 ransom may was P rac tised in the last ages. It was frequent for military 
 
 be trans- men to resign their prisoners, and transfer all the rights they 
 
 ferred. had over them into other hands. But as the person who 
 
 takes a prisoner is bound to treat him with justice and hu- 
 
 manity ( 150), he must not, if he wishes that his conduct 
 
 should be free from censure, transfer his right, in an unli- 
 
 mited manner, to one who might make an improper use of it : 
 
 when he has agreed with his prisoner concerning the price 
 
 of his ransom, he may transfer to whom he pleases the right 
 
 to demand the stipulated sum. 
 
 ? 280. What When once the agreement is made with a prisoner for the 
 
 tJufconvem P" ce ^ ^is ransom, it becomes a perfect contract, and can- 
 
 tion made n t ^ e rescinded under pretence that the prisoner is disco- 
 
 for the rate vered to be richer than was imagined : for it is by no means 
 
 of the ran- necessary that the rate should be proportioned to the wealth 
 
 B0m< of the prisoner, since that is not the scale by which we mea- 
 
 sure the right to detain a prisoner of war ( 148, 153). 
 
 But it is natural to proportion the price of the ransom to 
 
 the prisoner's rank in the hostile army, because the liberty 
 
 of an officer of distinction is of greater consequence than 
 
 that of a private soldier or an inferior officer. If the pri- 
 
 soner has not only concealed, but disguised his rank, it is a 
 
 fraud on his part, which gives the captor a right to annul the 
 
 compact. 
 
 \ 281. A pri- If a prisoner, having agreed on the price of his ransom, 
 
 soner dying ^j eg before payment, it is asked whether the stipulated sum 
 
 ment e ofSn- be due and whether the heirs are bound to pay it? They 
 
 aom. undoubtedly are, if the prisoner died in the possession of his 
 
 liberty : for, from the moment of his release, in consideration 
 
 of which he had promised a sum, that sum becomes due, and 
 
 does not at all belong to his heirs. But, if he had not yet 
 
 536
 
 AND PASSPORTS, ETC. 420 
 
 obtained his liberty, the price which was to have been paid CHAP. m. 
 for it is not a debt on him or his heirs, unless he had made CHAP- XTI V 
 his agreement in a different manner ; and he is not reputed 
 to have received his liberty until the moment when he is per- 
 fectly free to depart at pleasure, when neither the person 
 who held him prisoner, nor that person's sovereign, opposes 
 his release and departure. 
 
 If he has only been permitted to take a journey, for the 
 purpose of prevailing on his friends or his sovereign to fur- 
 nish him with the means of ransoming himself, and dies be- 
 fore he is possessed of his full liberty, before he is finally 
 discharged from his parole, nothing is due for his ransom. 
 
 If, after having agreed on the price, he is detained in pri- 
 son till the time of payment, and there dies in the interim, 
 his heirs are not bound to pay the ransom such an agree- 
 ment being, on the part of the person who held him prisoner, 
 no more than a promise of giving him his liberty on the 
 actual payment of a certain sum. A promise of buying and 
 selling does not bind the supposed purchaser to pay the price 
 of the article in question, if it happens to perish before the 
 completion of the purchase. But if the contract of sale be 
 perfect, the purchaser must pay the price of the thing sold, 
 though it should happen to perish before delivery, provided 
 there was no fault or delay on the part of the vendor. For 
 this reason, if the prisoner -has absolutely concluded the 
 agreement for his ransom, acknowledging himself, from that 
 moment, debtor for the stipulated sum, and is, nevertheless, * 
 still detained, no longer indeed as a prisoner, but a surety 
 for the payment, the price of the ransom is due, notwith- 
 standing the circumstance of his dying in the interim. 
 
 If the agreement says that the ransom shall be paid on a 
 certain day, and the prisoner happens to die before that day, 
 the heirs are bound to pay the sum agreed on : for the ran- 
 som was due ; and the appointed day was assigned merely as 
 the term of payment. 
 
 From a rigid application of the same principles, it follows ? 282. Pn- 
 that a prisoner, who has been released on condition of pro- soner re- 
 curing the release of another, should return to prison, in ^* s j d ti of 
 case the latter happens to die before he has been able to^cni-ing 
 procure him his liberty. But certainly such an unfortunate the release 
 case is entitled to lenity ; and equity seems to require that of another, 
 this prisoner should be allowed to continue in the enjoyment 
 of that liberty which has been granted to him, provided he 
 pays a fair equivalent for it, since he is now unable to pur- 
 chase it precisely at the price agreed on. 
 
 If a prisoner, who has been fully set at liberty, after hav- 283. Pri- 
 ing promised but not paid his ransom, happens to be taken a soner - 
 second time, it is evident that, without being exempted from ! ake , n befo r? 
 
 ,1 /!/ * he has paid 
 
 the payment of his former ransom, he will have to pay a his fom ;, r 
 second, if he wishes to recover his liberty. ransom. 
 
 68 537
 
 420 OF SAFE-CONDUCTS, ETC. 
 
 BOOK in. On the other hand, though the prisoner has agreed for the 
 
 CHAP, xvn. p r j ce O f n ig ransom , if ? before the execution of the com- 
 
 284. Pri- p ac t ? before he is set at liberty in virtue of it, he be re- 
 
 cued'before ta ^ en an ^ delivered by his own party, he owes nothing. I 
 
 he has re- here evidently suppose that the contract for his ransom was 
 
 ceived his li- not completed, and that the prisoner had not acknowledged 
 
 berty. himself debtor for the sum agreed on. The person who held 
 
 [ 421 ] him prisoner had, as it were, only made him a promise of 
 
 selling, and he had promised to purchase : but the purchase 
 
 and sale had not actually passed into effect; the property 
 
 was not actually transferred. 
 
 285. Who- The property of a prisoner's effects is not vested in the 
 thfauHwliifih ca P tor ' ex 66 ?* so f ar as ne seizes on those effects at the time 
 a prisoner* 5 ^ ^ s ca pture. Of this there is no doubt, in these modern 
 has found times, when prisoners of war are not reduced to slavery, 
 means to And, even by the law of nature, the property of a slave's 
 conceal, be- g 00( j s (j oes no ^ without some other reason, pass to the mas- 
 im ' ter of the slave. There is nothing in the nature of slavery 
 which can of itself produce that effect. Though a man 
 obtains certain rights over the liberty of another, does it 
 thence follow that he shall have a right over his property 
 also ? When, therefore, the enemy has not plundered his 
 prisoner, or when the latter has found means to conceal 
 something from the captor's search, whatever he has thus 
 saved still continues to be his own property, and he may em- 
 ploy it towards the payment of his ransom. At present, 
 even the plundering of prisoners is not always practised : 
 the greedy soldier sometimes proceeds to such lengths ; but 
 an officer would think it an indelible stain on his character, 
 to have deprived them of the smallest article. A party of 
 private French troopers, who had captured a British general 
 at the battle of Rocoux, claimed no right to anything be- 
 longing to their prisoner, except his arms alone. 
 
 g 286. Hos- The death of the prisoner extinguishes the captor's right. 
 
 tages given "Wherefore, if any person is given as a hostage in order to 
 
 leL^ofT P rocure a prisoner's enlargement, he ought to be released the 
 
 prisoner. moment the prisoner dies ; and, on the other hand, if the 
 
 hostage dies, his death does not reinstate the prisoner in the 
 
 possession of his liberty. The reverse of this is true, if the 
 
 one, instead of being simply a hostage for the other, had 
 
 been substituted in his stead. 
 
 538
 
 OF CIVIL WAR. 421 
 
 BOOK. m. 
 CHAP. xvm. 
 
 CHAP. XVIII. 
 
 OF CIVIL LAW. 
 
 IT is a question very much debated, whether a sovereign 287. Foun- 
 is bound to observe the common laws of war towards rebel- Cation of the 
 lious subjects who have openly taken up arms against him ? JjJJJJ 18 *'" 
 A flatterer, or a prince of a cruel and arbitrary disposition, aga i ns t the 
 will immediately pronounce that the laws of war were not rebels, 
 made for rebels, for whom no punishment can be too severe. [ 422 ] 
 Let us proceed more soberly, and reason from the incon- 
 testable principles above laid down. In order clearly to dis- 
 cover what conduct the sovereign ought to pursue towards 
 revolted subjects, we must, in the first place, recollect that 
 all the sovereign's rights are derived from those of the state 
 or of civil society, from the trust reposed in him, from the 
 obligation he lies under of watching over the welfare of the 
 nation, of procuring her greatest happiness, of maintaining 
 order, justice, and peace within her boundaries (Book I. 
 Chap. IV). Secondly, we must distinguish the nature and 
 degree of the different disorders which may disturb the state, 
 and oblige the sovereign to take up arms, or substitute forci- 
 ble measures instead of the milder influence of authority. 
 
 The name of rebels is given to all subjects who unjustly g 288. Who 
 take up arms against the ruler of the society, whether their ^e rebels, 
 view be to deprive him of the supreme authority, or to resist 
 his commands in some particular instance, and to impose con 
 ditions on him. 
 
 A popular commotion is a concourse of people who as- 2 289. Popu- 
 semble in a tumultuous manner, and refuse to listen to the ] * r comm - 
 voice of their superiors, whether the design of the assembled ^io 8 ^ 
 multitude be levelled against the superiors themselves, or duion? " 
 only against some private individuals. Violent commotions 
 of this kind take place when the people think themselves 
 aggrieved ; and there is no order of men who so frequently 
 give rise to them as the tax-gatherers. If the rage of the 
 malecontents be particularly levelled at the magistrates, or 
 others vested with the public authority, and they proceed to 
 a formal disobedience or acts of open violence, this is called 
 a sedition. When the evil spreads, when it infects the ma- 
 jority of the inhabitants of a city or province, and gains 
 such strength that even the sovereign himself is no longer 
 obeyed, it is usual more particularly to distinguish such a 
 disorder by the name of insurrection. 
 
 All these violences disturb the public order, and are state g 290. HOW 
 crimes, even when arising from just causes of complaint. ^ s0 - 
 
 539
 
 422 OF CIVIL WAR. 
 
 BOOK m. For violent measures are forbidden in civil society : the in- 
 CHAP. xvin. j ure( j individuals should apply to the magistrate for redress ;^ 
 reign is to and if they do not obtain justice from that quarter, they may 
 suppress j a y their complaints at the foot of the throne. Every citi- 
 em> zen should even patiently endure evils, which are not insup- 
 portable, rather than disturb t]ie public peace. A denial of 
 justice on the part of the sovereign, or affected delays, can 
 alone excuse the furious transports of a people whose pa- 
 tience has been exhausted, and even justify them, if the 
 evils be intolerable, and the oppression great and manifest. 
 But what conduct shall the sovereign observe towards the in- 
 surgents ? I answer, in general, such conduct as shall at 
 the same time be the most consonant to justice, and the most 
 salutary to the state. Although it be his duty to repress 
 those who unnecessarily disturb the public peace, he is bound 
 to show clemency towards unfortunate persons, to whom just 
 causes of complaint have been given, and whose sole crime 
 consists in the attempt to do themselves justice : they have 
 been deficient in patience rather than fidelity. Subjects who 
 [ 423 ] rise against their prince without cause deserve severe punish- 
 ment : yet, even in this case, on account of the number of 
 the delinquents, clemency becomes a duty in the sovereign. 
 Shall he depopulate a city, or desolate a province, in order 
 to punish her rebellion ? Any punishment, however just in 
 itself, which embraces too great a number of persons, becomes 
 an act of downright cruelty. Had the insurrection of the 
 Netherlands against Spain been totally unwarrantable, univer- 
 sal detestation would still attend the memory of the duke of 
 Alva, who made it his boast that he had caused twenty thou- 
 sand heads to be struck off by the hands of the common exe- 
 cutioner. Let not his sanguinary imitators expect to justify 
 their enormities by the plea of necessity. What prince ever 
 suffered more outrageous indignities from his subjects than 
 Henry the Great, of France ? Yet, his victories were ever 
 accompanied by a uniform clemency; and that excellent 
 prince at length obtained the success he deserved : he gained 
 a nation of faithful subjects ; whereas the duke of Alva 
 caused his master to lose the United Provinces. Crimes, in 
 which a number of persons are involved, are to be punished 
 by penalties which shall equally fall on all the parties con- 
 cerned : the sovereign may deprive a town of her privileges, 
 at least, till she has fully acknowledged her fault : as to cor- 
 poral punishment, let that be reserved for the authors of the 
 disturbances, for those incendiaries who incite the people 
 to revolt. But tyrants alone will treat, as seditious, those 
 brave and resolute citizens who exhort the people to preserve 
 themselves from oppression, and to vindicate their rights and 
 privileges : a good prince will commend such virtuous pa- 
 triots, provided their zeal be tempered with moderation and 
 prudence. If he has justice and his duty at heart, if he 
 
 540
 
 OF CIVIL WAR. 423 
 
 aspires to that immortal and unsullied glory of being the OOK m. 
 father of his people, let him mistrust the selfish suggestions CHAP - XVIir _- 
 of that minister who represents to him as rebels all those 
 citizens who do not stretch out their necks to the yoke of 
 slavery, who refuse tamely to crouch under the rod of arbi- 
 trary power. 
 
 In many cases, the safest, and at the same time the most 291. He is 
 just method of appeasing seditions, is to give the people satis- bound to 
 faction. And if there existed no reasons to justify the insur- JJ^J g *J 
 rection (a circumstance which, perhaps, never happens), even has made to 
 in such case, it becomes necessary, as we have above observed, the rebels, 
 to grant an amnesty where the offenders are numerous. When 
 the amnesty is once published and accepted, all the past must 
 be buried in oblivion; nor must any one be called to account 
 for what has been done during the disturbances : and, in 
 general, the sovereign, whose word ought ever to be sacred, 
 is bound to the faithful observance of every promise he has 
 made, even to rebels, I mean, to such of his subjects as 
 have revolted without reason or necessity. If his promises 
 are not inviolable, the rebels will have no security in treating 
 with him : when they have once drawn the sword, they must [ 424 ] 
 throw away the scabbard, as one of the ancients expresses it ; 
 and the prince, destitute of the more gentle and salutary 
 means of appeasing the revolt, will have no other remaining 
 expedient than that of utterly exterminating the insurgents. 
 These will become formidable through despair ; compassion 
 will bestow succours on them ; their party will increase, and 
 the state will be in danger. What would have become of 
 France, if the leaguers had thought it unsafe to rely on the 
 promises of Henry the Great? The same reasons which 
 should render the faith of promises inviolable and sacred be- 
 tween individual and individual, between sovereign and sove- 
 reign, between enemy and enemy (Book II. 163, 218, &c., 
 and Book III. 174), subsist in all their force between the 
 sovereign and his insurgent or rebellious subjects. However, 
 if they have extorted from him odious conditions, which are 
 inimical to the happiness of the nation, or the welfare of the 
 state, as he has no right to do or grant any thing contrary 
 to that grand rule of his conduct, which is at the same time 
 the measure of his power, he may justly revoke any perni- 
 cious concessions which he has been obliged to make, pro- 
 vided the revocation be sanctioned by the consent of the 
 nation, whose opinion he must take on the subject, in the 
 manner and forms pointed out to him by the constitution of 
 the state. But this remedy is to be used with great reserve, 
 and only in matters of high importance, lest the faith of pro- 
 mises should be weakened and brought into disrepute.* 
 
 * An instance of this occurs in the insurrection at Madrid, in 1766. At 
 transactions which took place after the the requisition of the cortes, the king 
 2V 541
 
 424 OF CIVIL WAR. 
 
 BOOK HI. When a party is formed in a state, who no longer obey the 
 IAP. xvm. S0 vereign, and are possessed of sufficient strength to oppose 
 
 2 292. civil hj m) or wnen) i n a republic, the nation is divided into two 
 opposite factions, and both sides take up arms, this is called 
 a civil war. Some writers confine this term to a just insur- 
 rection of the subjects against their sovereign, to distinguish 
 that lawful resistance from rebellion, which is an open and 
 unjust resistance. But what appellation will they give to a 
 war which arises in a republic torn by two factions, or in a 
 monarchy, between two competitors for the crown ? Custom 
 appropriates the term of " civil war" to every war between 
 the members of one and the same political society. If it be 
 between part of the citizens on the one side, and the sove- 
 reign, with those who continue in obedience to him, on the 
 other, provided the malecontents have any reason for taking 
 up arms, nothing further is required to entitle such disturb- 
 ance to the name of civil war, and not that of rebellion. This 
 latter term is applied only to such an insurrection against 
 lawful authority as is void of all appearance of justice. The 
 [ 425 ] sovereign, indeed, never fails to bestow the appellation of 
 rebels on all such of his subjects as openly resist him : but, 
 when the latter have acquired sufficient strength to give him 
 effectual opposition, and to oblige him to carry on the war 
 against them according to the established rules, he must ne- 
 cessarily submit to the use of the term " civil war." 
 g 293. A It is foreign to our purpose in this place to weigh the 
 civil war reasons which may authorize and justify a civil war : we have 
 fwo^nde e ^ sewnere treated of the cases wherein subjects may resist 
 plndent" * ne sovereign (Book I. Chap. IV). Setting, therefore, the 
 parties. justice of the cause wholly out of the question, it only remains 
 for us to consider the maxims which ought to be observed in 
 a civil war, and to examine whether the sovereign in parti- 
 cular is, on such an occasion, bound to conform to the esta- 
 blished laws of war. 
 
 A civil war breaks the bands of society and government, 
 or, at least, suspends their force and effect : it produces in the 
 nation two independent parties, who consider each other as 
 enemies, and acknowledge no common judge. Those two 
 parties, therefore, must necessarily be considered as thence- 
 forward constituting, at least for a time, two separate bodies, 
 two distinct societies. Though one of the parties may have 
 been to blame in breaking the unity of the state and resisting 
 the lawful authority, they are not the less divided in fact. 
 Besides, who shall judge them ? who shall pronounce on which 
 side the right or the wrong lies? On earth they have no 
 common superior. They stand therefore in precisely the 
 same predicament as two nations, who engage in a contest, 
 
 revoked the concessions which he had populace, but he suffered the amnesty 
 been obliged to make to the insurgent to remain in force. 
 MB
 
 OF CIVIL WAK. 425 
 
 and, being unable to come to an agreement, have recourse to BOOK m. 
 arms. CHAP ' XYIIT - 
 
 This being the case, it is very evident that the common I 294. They 
 laws of war, those maxims of humanity, moderation, and are to ob - 
 honour, which we have already detailed in the course of this *^ m * e 
 work, ought to be observed by both parties in every civil i aws O f war . 
 war. For the same reasons which render the observance of 
 those maxims a matter of obligation between state and state, 
 it becomes equally and even more necessary in the unhappy 
 circumstance of two incensed parties lacerating their common 
 country. Should the sovereign conceive he has a right to 
 hang up his prisoners as rebels, the opposite party will make 
 reprisals :* if he does not religiously observe the capitula- 
 tions, and all other conventions made with his enemies, they 
 will no longer rely on his word : should he burn and ravage, 
 they will follow his example ; the war will become cruel, hor- 
 rible, and every day more destructive to the nation. The [ 426 ] 
 duke de Montpensier's infamous and barbarous excesses 
 against the reformed party in France are too well known: 
 the men were delivered up to the executioner, and the women 
 to the brutality of the soldiers. What was the consequence ? 
 the Protestants became exasperated; they took vengeance 
 of such inhuman practices ; and the war, before sufficiently 
 cruel as a civil and religious war, became more bloody and 
 destructive. Who could without horror read of the savage 
 cruelties committed by the Baron Des Adrets ? By turns a 
 Catholic and a Protestant, he distinguished himself by his 
 barbarity on both sides. At length it became necessary to 
 relinquish those pretensions to judicial authority over men 
 who proved themselves capable of supporting their cause by 
 force of arms, and to treat them, not as criminals but as 
 enemies. Even the troops have often refused to serve in 
 a war wherein the prince exposed them to cruel reprisals. 
 Officers who had the highest sense of honour, though ready to 
 shed their blood in the field of battle for his service, have not 
 thought it any part of their duty to run the hazard of an 
 ignominious death. Whenever, therefore, a numerous body 
 of men think they have a right to resist the sovereign, and 
 feel themselves in a condition to appeal to the sword, the war 
 ought to be carried on by the contending parties in the 
 
 * The prince of Conde, commander The duko of Alva made it a practice 
 
 of Louis XIII.'s farces against the re- to condemn to death every prisoner he 
 
 formed party, having hanged sixty-four took from the confederates in the Ne- 
 
 officers whom he had made prisoners therlands. They, on their part, retali- 
 
 during the civil war, the Protestants re- ated, and at length compelled him to 
 
 solved upon retaliation ; and the duke respect the law of nations and the rules 
 
 de Rohan, who commanded them, caused of war in his conduct toward them, 
 
 an equal number of Catholic officers to Grotius, Ann. lib. ii. 
 be hanged. See Memoires de Rohan.
 
 426 OF CIVIL WAR. 
 
 BOOK in. manner as by two different nations : and they ought to leave 
 cHA.p-_xym. O p en t j ie same means for preventing its being carried to out- 
 rageous extremities, and for the restoration of peace. 
 
 When the sovereign has subdued the opposite party, and 
 reduced them to submit and sue for peace, he may except 
 from the amnesty the authors of the disturbances, the heads 
 of the party: he may bring -them to a legal trial, and punish 
 them, if they be found guilty. He may act in this manner 
 particularly on occasion of those disturbances in which the 
 interests of the people are not so much the object in view as 
 the private aims of some powerful individuals, and which 
 rather deserve the appellation of revolt than of civil ivar. 
 Such was the case of the unfortunate duke of Montmorency : 
 he took up arms against the king, in support of the duke of 
 Orleans ; and, being defeated and taken prisoner at the bat- 
 tle of Castelnaudari, he lost his life on a scaffold, by the sen- 
 tence of the parliament of Toulouse. If he was generally 
 pitied by all men of worth and sentiment, it was because they 
 viewed him rather as an opponent to the exorbitant power of 
 an imperious minister, than as a rebel against his sovereign, 
 and that his heroic virtues seemed to warrant the purity 
 of his intentions.* 
 
 \ 295. The When subjects take up arms without ceasing to acknow- 
 effects of ledge the sovereign, and only for the purpose of obtaining a 
 tiTuished 13 re( ^ ress f their grievances, there are two reasons for observ- 
 according to i n g the common laws of war towards them : First, an appre- 
 cases. hension lest the civil war should become more cruel and de- 
 structive by the insurgents making retaliation, which, as we 
 [ 427 ] have already observed, they will not fail to do, in return for 
 the severities exercised by the sovereign. 2. The danger 
 of committing great injustice by hastily punishing those who 
 are accounted rebels. The flames of discord and civil war 
 are not favourable to the proceedings of pure and sacred jus- 
 tice : more quiet times are to be waited for. It will be wise 
 in the prince to keep his prisoners, till, having restored tran- 
 quillity, he is able to bring them to a legal trial. 
 
 As to the other effects which the law of nations attributes 
 to public war, see Chap. XII. of this Book, and particularly 
 the acquisition of things taken in war, subjects who take up 
 arms against their sovereign without ceasing to acknowledge 
 him, cannot lay claim to the benefit of those effects. The 
 booty alone, the movable property carried off by the enemy, 
 is considered as lost to the owners ; but this is only on ac- 
 count of the difficulty of recognising it, and the numberless 
 inconveniences which would arise from the attempt to recover 
 it. All this is usually settled in the edict of pacification, or 
 the act of amnesty. 
 
 * See the historians of the reign of Louis XIIL
 
 OF CIVIL WAR. 427 
 
 But, when a nation becomes divided into two parties ab- BOOK m. 
 feolutely independent, and no longer acknowledging a common CHAP - * TIIL 
 superior, the state is dissolved, and the war between the two 
 parties stands on the same ground, in every respect, as a 
 public war between two different nations. Whether a republic 
 be split into two factions, each maintaining that it alone con- 
 stitutes the body of the state, or a kingdom be divided 
 between two competitors for the crown, the nation is severed 
 into two parties, who will mutually term each other rebels. 
 Thus there exist in the state two separate bodies, who pre- 
 tend to absolute independence, and between whom there is 
 no judge ( 293). They decide their quarrel by arms, as two 
 different nations would do. The obligation to observe the 
 common laws of war towards each other is therefore absolute, 
 indispensably binding on both parties, and the same which 
 the law of nature imposes on all nations in transactions be- 
 tween state and state. 
 
 Foreign nations are not to interfere in the internal govern- $ 296. Con. 
 ment of an independent state. (Book II. 54, &c.) It be- duct to be 
 longs not to them to judge between the citizens whom discord J b r s j v n e ^ y 
 has roused to arms, nor between the prince and his subjects : t^naf " 
 both parties are equally foreigners to them, and equally in- 
 dependent of their authority. They may, however, interpose 
 their good offices for the restoration of peace ; and this the 
 law of nature prescibes to them. (Book II. Ch. I.) But, if 
 their mediation proves fruitless, such of them as are not 
 bound by any treaty, may, with the view of regulating their 
 own conduct, take the merits of the cause into consideration, 
 and assist the party which they shall judge to have right on its 
 side, in case that party requests their assistance or accepts the 
 offer of it : they are equally at liberty, I say, to do this, as [ 428 ] 
 to espouse the quarrel of one nation embarking in a war 
 against another. As to the allies of the state thus distracted 
 by civil war, they will find a rule for their conduct in the na- 
 ture of their engagements, combined with the existing cir- 
 cumstances. Of this we have treated elsewhere. (See Book 
 II. Chap. XII. and particularly 196 and 19T.) 
 
 645
 
 BOOK IV. 
 
 OF THE RESTORATION OF PEACE; AND OF 
 EMBASSIES. 
 
 CHAP. I. 
 
 CHAP. I. 
 
 OF PEACE, AND THE OBLIGATION TO CULTIVATE IT. 
 
 g 1. What -t EACE is the reverse of war : it is that desirable state 
 peace is. in which every one quietly enjoys his rights, or, if contro- 
 verted, amicably discusses them by force of argument. Hobbs 
 has had the boldness to assert, that war is the natural state 
 of man. But if, by "the natural state of man," we under- 
 stand (as reason requires that we should) that state to which 
 he is destined and called by his nature, peace should rather be 
 termed his natural state. For, it is the part of a rational 
 being to terminate his differences by rational methods ; 
 whereas, it is the characteristic of the brute creation to de- 
 cide theirs by force.* Man, as we have already observed 
 (Prelim. 10), alone and destitute of succours, would neces- 
 sarily be a very wretched creature. He stands in need of 
 the intercourse and assistance of his species, in order to enjoy 
 the sweets of life, to develope his faculties, and live in a man- 
 ner suitable to his nature. Now, it is in peace alone that all 
 these advantages are to be found : it is in peace that men 
 respect, assist, and love each other : nor would they ever de- 
 [ 430 ] part from that happy state, if they were not hurried on by 
 the impetuosity of their passions, and blinded by the gross 
 deceptions of self-love. What little we have said of the 
 effects will be sufficient to give some idea of its various calami- 
 ties ; and it is an unfortunate circumstance for the human 
 race, that the injustice of unprincipled men should so often 
 render it inevitable. 
 
 $ 2. Obiiga- Nations who are really impressed with sentiments of hu- 
 
 tion of cuiti- man ity, who seriously attend to their duty, and are ac- 
 
 tmg it q ua i n ted with their true and substantial interests, will never 
 
 * Nam cum sint duo genera decer- endum est ad posterius, si uti non licet 
 tandi, unum per disceptationem, alte- superiore. Cicero, de Offic. lib. i. cap. 
 rum per vim, cumquo illud proprium 11. 
 Bit hominis, hoc belluarum, confugi- 
 546
 
 OF PEACE, AND THE OBLIGATION TO CULTIVATE IT. 430 
 
 seek to promote their own advantage at the expense and de- BOOK IT. 
 triment of other nations: however intent they may be on CHAP ' r ' 
 their own happiness, they will ever be careful to combine it 
 with that of others, and with justice and equity. Thus dis- 
 posed, they will necessarily cultivate peace. If they do not 
 live together in peace, how can they perform those mutual 
 and sacred duties which nature enjoins them? And this 
 state is found to be no less necessary to their happiness than 
 to the discharge of their duties. Thus, the law of nature 
 every way obliges them to seek and cultivate peace. That 
 divine law has no other end in view than the welfare of man- 
 kind : to that object all its rules and all its precepts tend : 
 they are all deducible from this principle, that men should 
 seek their own felicity ; and morality is no more than the art 
 of acquiring happiness. As this is true of individuals, it is 
 equally so of nations, as must appear evident to any one who 
 will but take the trouble of reflecting on what we have said 
 of their common and reciprocal duties, in the first chapter of 
 the second book. 
 
 This obligation of cultivating peace binds the sovereign by 3 - The s - 
 a double tie. He owes this attention to his people, on whom verei s n ' s 
 war would pour a torrent of evils ; and he owes it in the a * 
 most strict and indispensable manner, since it is solely for the 
 advantage and welfare of the nation that he is intrusted with 
 the government. (Book I. 39.) He owes the same attention 
 to foreign nations, whose happiness likewise is disturbed by 
 war. The nation's duty in this respect has been shown in 
 the preceding chapter ; and the sovereign, being invested with 
 the public authority, is at the same time charged with all the 
 duties of the society, or body of the nation. (Book I. 41.) 
 
 The nation or the sovereign ought not only to refrain, on ? 4. Extent 
 their own part, from disturbing that peace which is so salu- of thls duty> 
 tary to mankind : they are, moreover, bound to promote it as 
 far as lies in their power, to prevent others from breaking 
 it without necessity, and to inspire them with the love of jus- 
 tice, equity, and public tranquillity, in a word, with the love 
 of peace. It is one of the best offices a sovereign can render 
 to nations, and to the whole universe. What a glorious and 
 amiable character is that of peace-maker ! Were a powerful 
 prince thoroughly acquainted with the advantages attending 
 it, were he to conceive what pure and effulgent glory he 
 may derive from that endearing character, together with the 
 gratitude, the love, the veneration, and the confidence of na- 
 tions, did he know what it is to reign over the hearts of 
 men, he would wish thus to become the benefactor, the [ 431 ] 
 friend, the father of mankind ; and in being so, he would find 
 infinitely more delight than in the most splendid conquests. 
 Augustus, shutting the temple of Janus, giving peace to the 
 universe, and adjusting the disputes of kings and nations, 
 
 547
 
 431 OF PEACE, AND THE OBLIGATION TO CULTIVATE IT. 
 
 BOOK iv. Augustus, at that moment, appears the greatest of mortals, 
 IAP ' r ' -and, as it were, a god upon earth. 
 
 g 5. Of the But those disturbers of the public peace, those scourges 
 oflie^ub f the earth > w ^' fired kj a lawless thirst of power, or ina- 
 ne peace 1 P e ^ e d by the pride and ferocity of their disposition, snatch up 
 arms without justice or reason, and sport with the quiet of 
 mankind and the blood of their subjects, those monstrous 
 heroes, though almost deified by the foolish admiration of the 
 vulgar, are in effect the most cruel enemies of the human 
 race, and ought to be treated as such. Experience shows 
 what a train of calamities war entails even upon nations that 
 are not immediately engaged in it. War disturbs commerce, 
 destroys the subsistence of mankind, raises the price of all the 
 most necessary articles, spreads just alarms, and obliges all 
 nations to be upon their guard, and to keep up an armed 
 force. He, therefore, who without just cause breaks the ge- 
 neral peace, unavoidably does an injury even to those nations 
 which are not the objects of his arms ; and by his pernicious 
 example he essentially attacks the happiness and safety of 
 every nation upon earth. He gives them a right to join in a 
 general confederacy for the purpose of repressing and chas- 
 tising him, and depriving him of a power which he so enor- 
 mously abuses. What evils does he not bring on his own 
 nation, lavishing her blood to gratify his inordinate passions, 
 and exposing her to the resentment of a host of enemies ! 
 A famous minister of the last century has justly merited the 
 indignation of his country, by involving her in unjust or un- 
 necessary wars. If by his abilities and indefatigable appli- 
 cation, he procured her distinguished successes in the field of 
 battle, he drew on her, at least for a time, the execration of 
 all Europe. 
 
 g 6. How The love of peace should equally prevent us from embark- 
 far war may j n g j n & war y^houfc necessity, and from persevering in it 
 after the necessity has ceased to exist. When a sovereign has 
 been compelled to take up arms for just and important rea- 
 sons, he may carry on the operations of war till he has at- 
 tained its lawful end, which is, to procure justice and safety. 
 (Book III. 28.) 
 
 If the cause be dubious, the just end of war can only be to 
 bring the enemy to an equitable compromise (Book III. 38) ; 
 and consequently the war must not be continued beyond that 
 point. The moment our enemy proposes or consents to such 
 compromise, it is our duty to desist from hostilities. 
 
 But if we have to do with a perfidious enemy, it would be 
 [ 432 ] imprudent to trust either his words or his oaths. In such 
 case, justice allows and prudence requires that we should 
 avail ourselves of a successful war, and follow up our advan- 
 tages, till we have humbled a dangerous and excessive power, 
 or compelled the enemy to give us sufficient security for the 
 time to come. 
 
 548
 
 OF TREATIES OF PEACE. 432 
 
 Finally, if the enemy obstinately rejects equitable condi- BOOK iv. 
 tions, he himself forces us to continue our progress till we. , CHAP - T - 
 have obtained a complete and decisive victory, by which he 
 is absolutely reduced and subjected. The use to be made 
 of victory has been shown above. (Book III. Chap. VIII. IX. 
 XIII.) 
 
 When one of the parties is reduced to sue for peace, or 7. Peace 
 both are weary of the war, then thoughts of an accommoda- the end of 
 tion are entertained, and the conditions are agreed on. Thus wa 
 peace steps in and puts a period to the war. 
 
 The general and necessary effects of peace are the reconci- 1 8. Gene- 
 liation of enemies and the cessation of hostilities on both r ^ effects 
 sides. It restores the two nations to their natural state. peace- 
 
 CHAP. II. CHAP, n. 
 
 TREATIES OF PEACE. (188) 
 
 WHEN the belligerent powers have agreed to lay down g 9. Defim- 
 their arms, the agreement or contract in which they stipulate tion of a 
 the conditions of peace, and regulate the manner in which it tre8lty of 
 is to be restored and supported, is called the treaty of peace. pec 
 
 The same power who has the right of making war, of de- g 10. By 
 termining on it, of declaring it, and of directing its opera- whom it 
 tions, has naturally that likewise of making and concluding may be con 
 the treaty of peace. (189) These two powers are connected c u e ' 
 together, and the latter naturally follows from the former. If 
 the ruler of the state is empowered to judge of the causes and 
 reasons for which war 1 is to be undertaken, of the time and 
 circumstances proper for commencing it, of the manner in 
 which it is to be supported and carried on, it is therefore 
 his province also to set bounds to its progress, to point out 
 the time when it shall be discontinued, and to conclude a peace. 
 But this power does not necessarily include that of granting or 
 accepting whatever conditions he pleases, with a view to peace. 
 Though the state has intrusted to the prudence of her ruler 
 the general care of determining on war and peace, yet she 
 may have limited his power in many particulars by the funda- 
 mental laws. Thus, Francis the First, king of France, had 
 the absolute disposal of war and peace : and yet the assembly 
 of Cognac declared that he had no authority to alienate any 
 
 (188) Upon the subject of treaties in are collected in Chitt/s Commercial 
 
 general, and their construction, see ante, Law, latter part of vol. 2. C. 
 
 book ii. ch. xii. p. 192274. Whilst (189) Ante, 291-2 ; and see Hoop, 1 
 
 examining the sections of Vattel rela- Rob. Rep. 196, Id.; 1 Chitty's Com. L. 
 
 tive to treaties, it will be found advis- 378. C. 
 able to read the modern treaties, which 
 
 549
 
 432 OF TREATIES OF PEACE. 
 
 BOOK iv. part of the kingdom by a treaty of peace. (See Book I. 
 
 A nation that has the free disposal of her domestic affairs, 
 and of the form of her government, may intrust a single 
 person, or an assembly, with the power of making peace, al- 
 though she has not given them that of making war. Of this 
 we have an instance in Sweden, where, since the death of 
 [ 433 ] Charles XII., the king cannot declare war without the consent 
 of the states assembled in diet ; but he may make peace in 
 conjunction with the senate. It is less dangerous for a nation 
 to intrust her rulers with this latter power, than with the 
 former. She may reasonably expect that they will not make 
 peace till it suits with the interest of the state. But their 
 passions, their own interest, their private views, too often in- 
 fluence their resolutions where there is question of undertaking 
 a war. Besides, it must be a very disadvantageous peace, in- 
 deed, that is not preferable to war, whereas, on the other 
 hand, to exchange peace for war is always very hazardous. 
 
 When a prince, who is possessed only of limited authority, 
 has a power to make peace, as he cannot of himself grant 
 whatever conditions he pleases, it is incumbent on those who 
 wish to treat with him on sure grounds, to require that the 
 treaty of peace be ratified by the nation, or by those who 
 are empowered to perform the stipulations contained in it. If, 
 for instance, any potentate, in negotiating a treaty of peace 
 with Sweden, requires a defensive alliance or guarantee as the 
 condition, this stipulation will not be valid, unless approved 
 and accepted by the diet, who alone have the power of carry- 
 ing it into effect. The kings of England are authorized to 
 conclude treaties of peace and alliance ; but they cannot, by 
 those treaties, alienate any of the possessions of the crown 
 without the consent of parliament. Neither can they, without 
 the concurrence of that body, raise any money in the kingdom ; 
 wherefore, whenever they conclude any subsidiary treaty, it is 
 their constant rule to lay it before the parliament, in order that 
 they may be certain of the concurrence of that assembly to 
 enable them to make good their engagements. When the 
 emperor Charles V. required of Francis the First, his prisoner, 
 such conditions as that king could not grant without the con- 
 sent of the nation, he should have detained him till the 
 states-general of France had ratified the treaty of Madrid, 
 and Burgundy had acquiesced in it : thus he would not have 
 lost the fruits of his victory by an oversight which appears 
 very surprising in a prince of his abilities. 
 
 11. Alien- We shall not repeat here what we have said on a former 
 ations made occasion concerning the alienation of a part of the state 
 
 ( B k L 268 ' &C ')' F f the Wh le State ' ( Ibi(L . 68 ' &C ') 
 We shall therefore content ourselves with observing, that, 
 
 in case of a pressing necessity, such as is produced by the 
 events of an unfortunate war, the alienations made by the 
 
 550 

 
 OF TREATIES OF PEACE. 433 
 
 prince, in order to save the remainder of the state, are consi- BOOK IT. 
 dered as approved and ratified by the mere silence of the na- CHAP " " 
 tion, when she has not, in the form of her government, retained 
 some easy and ordinary method of giving her express con- 
 sent, and has lodged an absolute power in the prince's hands. 
 The states-general are abolished in France by disuse and by 
 the tacit consent of the nation. Whenever, therefore, that 
 kingdom is reduced to any calamitous exigency, it belongs to 
 the king alone to determine by what sacrifices he may pur- [ 434 ] 
 chase peace : and his enemies will treat with him on a sure 
 footing. It would be a vain plea on the part of the people, to 
 say that it was only through fear they acquiesced in the abo- 
 lition of the states-general. The fact is, that they did acqui- 
 esce, and thereby suffered the king to acquire all the powers 
 necessary for contracting with foreign states in the name of 
 the nation. In every state there must necessarily be some 
 power with which other nations may treat on secure grounds. 
 A certain historian* says, that, " by the fundamental laws, 
 the kings of France cannot, to the prejudice of their suc- 
 cessors, renounce any of their rights, by any treaty, whether 
 voluntary or compulsory." The fundamental laws may indeed 
 withhold from the king the power of alienating, without the 
 nation's consent, what belongs to the state ; but they cannot 
 invalidate an alienation or renunciation made with that con- 
 sent.f And if the nation has permitted matters to proceed to 
 such lengths that she now has no longer any means of ex- 
 pressly declaring her consent, her silence alone, on such occa 
 sions, is in reality a tacit consent. Otherwise there would be 
 no possibility of treating on sure grounds with such a state ; 
 and her pretending thus beforehand to invalidate all future 
 treaties would be an infringement of the law of nations, 
 which ordains that all states should retain the means of treat- 
 ing with each other (Book I. 262), and should observe their 
 treaties. (Book II. 163, 269, &c.) 
 
 It is to be observed, however, that in our examination 
 whether the consent of the nation be requisite for alienating 
 any part of the state, we mean such parts as are still in the 
 nation's possession, and not those which have fallen into the 
 enemy's hands during the course of the war : for, as these 
 latter are no longer possessed by the nation, it is the sovereign 
 
 * The abbe de Choisi, Hist, de Charles national approbation, and the character 
 
 V. p. 492. of a law of the state. The cardinals 
 
 f The renunciation made by Anne who examined this affair by order of 
 
 of Austria, consort of Louis the Thir- the pope, whom Charles II. had con- 
 
 teenth, was good and valid, because it suited, paid no regard to Maria The- 
 
 was confirmed by the general assembly resa's renunciation, as not deeming it 
 
 of the cortes, and registered in all the of sufficient force to invalidate the laws 
 
 offices. The case was otherwise with of the country, and to supersede tho 
 
 that made by Anna Theresa, which established custom. Memoirs of M. 
 
 was not sanctioned by those formalities, de St. Philippe, vol. i. p. 29. Ed. 
 
 consequently, not stamped with the A. D. 1797. 
 
 551
 
 434 OF TREATIES OF PEACE. 
 
 BOOK iv. alone, if invested with the full and absolute administration of 
 CHAP - " the government, and with the power of making war and 
 peace, it is he alone, I say, who is to judge whether it be 
 expedient to relinquish those parts of the state, or to continue 
 the war for the recovery of them. And even though it should 
 be pretended that he cannot by his own single authority make 
 any valid alienation of them, he has, nevertheless, according 
 to our supposition, that is, if invested with full and absolute 
 power, he has, I say, a right to promise that the nation shall 
 never again take up arms for the recovery of those lands, 
 towns, or provinces, which he relinquishes : and this suffices 
 for securing the quiet possession of them to the enemy into 
 [ 435 ] whose hands they are fallen. 
 
 g 12. How The necessity of making peace authorizes the sovereign to 
 the sove- dispose of the property of individuals ; and the eminent do- 
 
 main gives him a right to do li ( Book L 244 )' He may 
 even, to a certain degree, dispose of their persons, by virtue 
 
 what con- of the power which he has over all his subjects. But as it is 
 cems indi- f or the public advantage that he thus disposes of them, the 
 viduais. state is bound to indemnify the citizens who are sufferers by 
 
 the transaction. (Ibid.) 
 
 13. Whe- Every impediment by which the prince is disabled from 
 ther a king, administering the affairs of government, undoubtedly deprives 
 bemg a pn- ^ m Q ^e power of making peace. Thus a king cannot make 
 
 sonerofwar, ,,* , i? -^ I_M e 
 
 can make a treaty of peace during his minority, or while in a state of 
 peace. mental derangement : this assertion does not stand in need 
 of any proof: but the question is, whether a king can con- 
 elude a peace while he is a prisoner of war, and whether the 
 treaty thus made be valid ? Some celebrated authors* here 
 draw a distinction between a monarch whose kingdom is pa- 
 trimonial, and another who has only the usufructus of his do- 
 minions. We think we have overthrown that false and dan- 
 gerous idea of a patrimonial kingdom (Book L 68, &c.), 
 and evidently shown that the notion ought not to be extended 
 beyond the bare power with which a sovereign is sometimes 
 intrusted, of nominating his successor, of appointing a new 
 prince to rule over the state, and dismembering some parts of 
 it, if he thinks it expedient ; the whole, however, to be uni- 
 formly done for the good of the nation, and with a view to her 
 greater advantage. Every legitimate government, whatever 
 it be, is established solely for the good and welfare of the 
 state. This incontestable principle being onee laid down, the 
 making of peace is no longer the peculiar province of the 
 king; it belongs to the nation. Now it is certain that a 
 captive prince cannot administer the government, or attend 
 to the management of public affairs. How shall he who is 
 not free command a nation ? How can he govern it in such 
 manner as best to promote the advantage of the people, and 
 
 * See Wolf. Jus Gent 2 .982. 
 552 

 
 OF TREATIES OF PEACE. 435 
 
 the public welfare? He does not, indeed, forfeit his rights; BCOK IT. 
 but his captivity deprives him of the power of exercising CEAP - "-. 
 them, as he is not in a condition to direct the use of them to 
 its proper and legitimate end. He stands in the same predi- 
 cament as a king in his minority, or labouring under a de- 
 rangement of his mental faculties. In such circumstances, it 
 is necessary that the person or persons whom the laws of the 
 state designate for the regency should assume the reins of 
 government. To them it belongs to treat of peace, to settle 
 the terms on which it shall be made, and to bring it to a con- 
 clusion, in conformity to the laws. 
 
 The captive sovereign may himself negotiate the peace, 
 and promise what personally depends on him : but the treaty 
 does not become obligatory on the nation till ratified by her- 
 self, or by those who are invested with the public authority 
 during the prince's captivity, or, finally, by the sovereign [ 436 ] 
 himself after his release. 
 
 But, if it is a duty incumbent on the state to use her best 
 efforts for procuring the release of the most inconsiderable 
 of her citizens who has lost his liberty in the public cause, the 
 obligation is much stronger in the case of her sovereign, 
 whose cares, attention, and labours are devoted to the common 
 safety and welfare. It was in fighting for his people that the 
 prince, who has been made prisoner, fell into that situation, 
 which, to a person of his exalted rank, must be wretched in the 
 extreme : and shall that very people hesitate to deliver him 
 at the expense of the greatest sacrifices ? On so melancholy 
 an occasion, they should not demur at any thing short of the 
 very existence of the state. But, in every exigency, the safety 
 of the people is the supreme law ; and, in so severe an extre- 
 mity, a generous prince will imitate the example of Regulus. 
 That heroic citizen, being sent back to Rome on his parole, 
 dissuaded the Romans from purchasing his release by an in- 
 glorious treaty, though he was not ignorant of the tortures 
 prepared for him by the cruelty of the Carthaginians.* 
 
 When an unjust conqueror, or any other usurper, has in- 14 Whe- 
 vaded the kingdom, he becomes possessed of all the powers ther peace 
 of government when once the people have submitted to him, can be mado 
 and, by a voluntary homage, acknowledged him as their y s ^ rp * 
 sovereign. Other states, as having no right to intermeddle 
 with the domestic concerns of that nation, or to interfere in 
 her government, are bound to abide by her decision, and to 
 look no farther than the circumstances of actual possession. 
 They may, therefore, broach and conclude a treaty of peace 
 with the usurper. They do not thereby infringe the right of 
 the lawful sovereign : it is not their business to examine and 
 judge of that right : they leave it as it is, and only look to 
 the possession, in all the affairs they have to transact with 
 
 * See Tit Lir. Epitom. lib. xviii. and .other historians. 
 7 2W 553
 
 436 OP TREATIES OP PEACE. 
 
 BOOK iv. that kingdom, pursuant to their own rights and those of the 
 CHAP, it. na tion whose sovereignty is contested. But this rule does not 
 preclude them from espousing the quarrel of the dethroned 
 monarch, and assisting him, if he appears to have justice on 
 his side : they then declare themselves enemies of the nation 
 which has acknowledged his rival, as, when two different states 
 are at war, they are at liberty to assist either party whose pre- 
 tensions appear to be best founded. 
 
 g 15. Allies The principal in the war, the sovereign in whose name it 
 included in j^g ^ een carried on, cannot justly make a peace without in- 
 ofVeaTe? eluding his allies, I mean those who have given him assist- 
 ance without directly taking part in the war. This precaution 
 is necessary, in order to secure them from the resentment of 
 the enemy : for though the latter has no right to take offence 
 against his adversary's allies, whose engagements were purely 
 of a defensive nature, and who have done nothing more than 
 [ 437 ] faithfully execute their treaties (Book III. 101) yet it too 
 frequently happens that the conduct of men is influenced by 
 their passions rather than by justice and reason. If the alli- 
 ance was not of prior date to the commencement of the war, 
 and was formed with a view to that very war, although these 
 new allies do not engage in the contest with all their force, 
 nor directly as principals, they nevertheless give to the prince 
 against whom they have joined, just cause to treat them as 
 enemies. The sovereign, therefore, whom they have assisted, 
 must not omit including them in the peace. 
 
 But the treaty concluded by the principal is no farther 
 obligatory on his allies than as they are willing to accede to 
 it, unless they have given him full power to treat for them. 
 By including them in his treaty, he only acquires a right, with 
 respect to his reconciled enemy, of insisting that he shall not 
 attack those allies on account of the succours they have fur- 
 nished against him, that he shall not molest them, but shall 
 live in peace with them as if nothing had happened. 
 \ 16. Asso- Sovereigns who have associated in a war, all those who 
 ciates to h ave di re ctly taken part in it, are respectively to make their 
 * rea *i es f peace, each for himself. Such was the mode 
 adopted at Nimeguen, at Ryswick, and at Utrecht. But the 
 alliance obliges them to treat in concert. To determine in 
 what cases an associate may detach himself from the alliance, 
 and make a separate peace, is a question which we have ex- 
 amined in treating of associations in war (Book III. Chap. VI.), 
 and of alliances in general (Book II. Chap. XII. and XV). 
 g 17. Medi- It frequently happens that two nations, though equally 
 ntion. tired of the war, do nevertheless continue it merely from a 
 fear of making the first advances to an accommodation, as 
 these may be imputed to weakness ; or they persist in it 
 from animosity, and contrary to their real interests. On 
 such occasions, some common friends of the parties effectually 
 interpose, by offering themselves as mediators. There cannot 
 
 $54
 
 OF TREATIES OF PEACE. 437 
 
 be a more beneficent office, and more becoming a great prince, ROOK iv. 
 than that of reconciling two nations at war, and thus putting CHAP - n - 
 a stop to the effusion of human blood : it is the indispensable 
 duty of those who have the means of performing it with suc- 
 cess. This is the only reflection we shall here make on a 
 subject we have already discussed (Book II. 328). 
 
 A treaty of peace can be no more than a compromise, g is. On 
 Were the rules of strict and rigid justice to be observed in it, what footing 
 so that each party should precisely receive every thing to which peace may 
 he has a just title, it would be impossible ever to make a peace. cl e u ^" 
 First, with regard to the very subject which occasioned the 
 war, one of the parties would be under a necessity of acknow- 
 ledging himself in the wrong, and condemning his own just 
 pretensions : which he will hardly do, unless reduced to the 
 last extremity. But if he owns the injustice of his cause, he 
 must at the same time condemn every measure he has pur- 
 sued in support of it : he must restore what he has unjustly 
 taken, must reimburse the expenses of the war, and repair 
 the damages. And how can a just estimate of all the damages 
 be formed ? What price can be set on all the blood that has [ 438 ] 
 been shed, the loss of such a number of citizens, and the ruin 
 of families ! Nor is this all. Strict justice would further 
 demand, that the author of an unjust war should suffer a pe- 
 nalty proportioned to the injuries for which he owes satisfac- 
 tion, and such as might insure the future safety of him whom 
 he attacked. How shall the nature of that penalty be deter- 
 mined, and the degree of it be precisely regulated ? In fine, 
 even he who had justice on his side may have transgressed 
 the bounds of justifiable self-defence, and been guilty of im- 
 proper excesses in the prosecution of a war whose object was 
 originally lawful : here then are so many wrongs, of which 
 strict justice would demand reparation. He may have made 
 conquests and taken booty beyond the value of his claim. 
 Who shall make an exact calculation, a just estimate of this ? 
 Since, therefore, it would be dreadful to perpetuate the war, 
 or to pursue it to the utter ruin of one of the parties, and 
 since, however just the cause in which we are engaged, we 
 must at length turn our thoughts towards the restoration of 
 peace, and ought to direct all our measures to the attainment 
 of that salutary object, no other expedient remains than 
 that of coming to a compromise respecting all claims and 
 grievances on both sides, and putting an end to all disputes 
 by a convention as fair and equitable as circumstances will 
 admit of. In such conventions, no decision is pronounced on 
 the original cause of the war, or on those controversies to 
 which the various acts of hostility might give rise ; nor is 
 either of the parties condemned as unjust, a condemnation 
 to which few princes would submit ; but, a simple agreement 
 is formed, which determines what equivalent each party shall 
 receive in extinction of all his pretensions. 
 
 555
 
 438 OF TREATIES OF PEACE. 
 
 BOOK iv. The effect of the treaty of peace is to put an end to the 
 CHAP- "' war, and to abolish the subject of it. It leaves the contract- 
 1 19. Gene- j n g p ar tjes no right to commit any acts of hostility on account 
 thelfeat of e ^ tner f tne subject itself which had given rise to the war, or, 
 peace. of any thing that was done during its continuance : wherefore 
 they cannot lawfully take up arms again for the same subject. 
 Accordingly, in such treaties, ' the contracting parties reci- 
 procally engage to preserve perpetual peace : which is not to 
 be understood as if they promised never to make war on each 
 other for any cause whatever. The peace in question relates 
 to the war which it terminates : and it is in reality perpetual, 
 inasmuch as it does not allow them to revive the same war, by 
 taking up arms again for the same subject which had origin- 
 ally given birth to it. 
 
 A special compromise, however, only extinguishes the par- 
 ticular means to which it relates, and does not preclude any 
 subsequent pretensions to the object itself, on other grounds. 
 Care is therefore usually taken to require a general compro- 
 mise, which shall embrace not only the existing controversy, 
 but the very thing itself which is the subject of that contro- 
 versy : stipulation is made for a general renunciation of all 
 pretensions whatever to the thing in question : and thus, 
 although the party renouncing might in the sequel be able to 
 [ 439 ] demonstrate by new reasons that the thing did really belong 
 
 to him, his claim would not be admitted. 
 
 f 20. Am- An amnesty is a perfect oblivion of the past ; and the end 
 nesty. O f peace being to extinguish all subjects of discord, this should 
 be the leading article of the treaty : and accordingly, such 
 is at present the constant practice. But though the treaty 
 should be wholly silent on this head, the amnesty, by the very 
 nature of the peace, is necessarily implied in it. 
 
 g 21. Things As each of the belligerent powers maintains that he has 
 not men- justice on his side, and as their pretensions are not liable to 
 be J ud g ed b 7 others ( Book IIL 188), whatever state things 
 happen to be in at the time of the treaty is to be considered 
 as their legitimate state ; and if the parties intend to make 
 any change in it, they must expressly specify it in the treaty. 
 Consequently all things not mentioned in the treaty are to 
 remain on the same footing on which they stand at the period 
 when it is concluded. This is also a consequence of the pro- 
 mised amnesty. All damages caused during the war are 
 likewise buried in oblivion ; and no action can be brought for 
 those of which the treaty does not stipulate the reparation : 
 they are considered as having never happened. 
 
 \ 22. Things But the effect of the compromise or amnesty cannot be ex- 
 
 not included tended to things which have no relation to the war that is 
 
 n the com- terminated by the treaty. Thus, claims founded on a debt, 
 
 amnesty ' or on an ^ n j ur j which had been done prior to the war, but 
 
 which made no part of the reasons for undertaking it, still 
 
 stand on their former footing, and are not abolished by 
 
 556
 
 OF EXECUTION OF THE TREATY OF PEACE. 439 
 
 the treaty, unless it be expressly extended to the extinction BOOK IT. 
 of every claim -whatever. The case is the same with debts CHAP " "' 
 contracted during the war, but for causes which have no re- 
 lation to it, or with injuries done during its continuance, 
 but which have no connection with the state of warfare. 
 
 Debts contracted with individuals, or injuries which they 
 may have received from any other quarter, without relation 
 to the war, are likewise not abolished by the compromise and 
 amnesty, as these solely relate to their own particular object, 
 that is to say, to the war, its causes, and its effects. Thus, 
 if two subjects of the belligerent powers make a contract to- 
 gether in a neutral country, or if the one there receives an 
 injury from the other, the performance of the contract, or 
 the reparation of the injury and damage, may be prosecuted 
 after the conclusion of the treaty of peace. 
 
 Finally, if the treaty expresses that all things shall be re- 
 stored to the state in which they were before the war, this 
 clause is understood to relate only to immovable possessions, 
 and cannot be extended to movables, or booty, which imme- 
 diately becomes the property of the captors, and is looked on 
 as relinquished by the former owners on account of the diffi- [ 440 ] 
 culty of recognising it, and the little hope they entertain of 
 ever recovering it. 
 
 When the last-made treaty mentions and confirms other ? 23. Former 
 treaties of prior date, these constitute a part of the new one, J^*^ d 
 no less than if they were literally transcribed and included in^ 1 ""* 
 it : and any new articles relating to former conventions are to firmed in 
 be interpreted according to the rules which we have laid down the new, are 
 in a preceding part of this work (Book II. Chap. XVII. and a P art of i4 - 
 particularly 286). 
 
 CHAP. III. CHAP, in. 
 
 OF THE EXECUTION OF THE TREATY OF PEACE. 
 
 A TREATY of peace becomes obligatory on the contract- $ 24. when 
 ing parties from the moment of its conclusion, the moment it the obiiga- 
 has passed through all the necessary forms : and they are 
 bound to have it carried into execution without delay.* From 
 that instant all hostilities must cease, unless a particular day 
 
 * It is an essential point to neglect to the Grand Pensionary De Witt, in 
 none of the formalities which can in- 1662, thus observes " The articles 
 sure the execution of the treaty, and and conditions of this alliance con- 
 prevent new disputes. Accordingly, tain various matters of different na- 
 care must be taken to have it duly tures, the majority of which fall under 
 recorded in all the proper offices and the cognisance of the privy council, 
 courts. M. Van Beuningen, writing several, under that of the admiralty, 
 2 w 2 557
 
 440 OF EXECUTION OF THE 
 
 BOOK iv. has been specified for the commencement of the peace. But 
 CHAP " '"' this treaty does not bind the subjects until it is duly notified to 
 them. The case is the same in this instance as in that of 
 a truce (Book II. 239). If it should happen that military 
 men, acting within the extent of their functions and pursuant 
 to the rules of their duty, commit any acts of hostility before 
 they have authentic information of the treaty of peace, it is a 
 misfortune, for which they are not punishable : but the sove- 
 reign, on whom the treaty of peace is already obligatory, is 
 bound to order and enforce the restitution of all captures made 
 subsequent to its conclusion : he has no right whatever to 
 retain them. 
 
 ? 25. Pubii- And in order to prevent those unhappy accidents, by which 
 ^ man y i nnocen * persons may lose their lives, public notice of 
 the peace is to be given without delay, at least to the troops. 
 But at present, as the body of the people cannot of themselves 
 undertake any act of hostility, and do not personally engage 
 in the war, the solemn proclamation of the peace may be de- 
 ferred, provided that care be taken to put a stop to all hosti- 
 lities : which is easily done by means of the generals who 
 direct the operations, or by proclaiming an armistice at the 
 head of the armies. The peace of 1735, between the emperor 
 and France, was not proclaimed till long after. The procla- 
 
 [ 441 ] mation was postponed till the treaty was digested at leisure, 
 the most important points having been already adjusted in the 
 preliminaries. The publication of the peace replaces the two 
 nations in the state they were in before the war. It again 
 opens a free intercourse between them, and reinstates the sub- 
 jects on both sides in the enjoyment of those mutual privileges 
 which the state of war had suspended. On the publication, 
 the treaty becomes a law to the subjects : and they are thence- 
 forward bound to conform to the regulations stipulated therein. 
 If, for instance, the treaty imports that one of the two nations 
 shall abstain from a particular branch of commerce, every 
 subject of that nation, from the time of the treaty's being 
 made public, is obliged to renounce that commerce. 
 
 g 26. Time When no particular time has been assigned for the execu- 
 
 of the exe- ^ on O f ^ ne treaty, and the performance of the several articles, 
 common sense dictates that every point should be carried into 
 effect as soon as possible : and it was, no doubt, in this light 
 that the contracting parties understood the matter. The 
 faith of treaties equally forbids all neglect, tardiness, and 
 studied delays, in the execution of them. 
 
 others, under that of the civil tri- followed; and the states-general rc- 
 
 bunals, the parliaments, Ac. es- quired that the treaty concluded the 
 
 cheatage, for instance, which comes same year should be recorded in all the 
 
 under the cognisance of the chambre parliaments of the kingdom. See the 
 
 des comptes [exchequer]. Thus, the king's reply on this subject, in his letter 
 
 treaty must be recorded in all those to the Count D'Estrades, page 399. 
 
 different places." This advice was Edit A.D. 1797. 
 558
 
 TEEATY OF PEACE. 441 
 
 But in this affair, as in every other, a legitimate excuse, BOOK iv. 
 founded on a real and insurmountable obstacle, is to be ad- CHAI>< III- 
 
 mitted ; for nobody is bound to perform impossibilities. The 27 - A law ~ 
 obstacle, when it does not arise from any fault on the side of ^^JJJJ? 
 the promising party, vacates a promise which cannot be made ted. 
 good by an equivalent, and of which the performance cannot 
 be deferred to another time. If the promise can be fulfilled 
 on another occasion, a suitable prolongation of the time must 
 be allowed. Suppose one of the contracting nations has, by 
 the treaty of peace, promised the other a body of auxiliary 
 troops : she will not be bound to furnish them, if she happen 
 to stand in urgent need of them for her own defence. Suppose 
 she has promised a certain yearly quantity of corn : it cannot 
 be demanded at a time when she herself labours under a 
 scarcity of provisions ; but, on the return of plenty, she is 
 bound to make good the quantity in arrear, if required. 
 
 It is further held as a maxim, that the promiser is absolved 28. The 
 from his promise, when, after he has made his preparations P r mise is 
 for performing it according to the tenor of his engagement, he ^ e ^^to 
 is prevented from fulfilling it, by the party himself to whom w hom it was 
 it was made. The promisee is deemed to dispense with the made has 
 fulfilment of a promise of which he himself obstructs the exe- himself hin - 
 cution. Let us therefore add, that if he who had promised JUJj^Jj^, 
 a thing by a treaty of peace was ready to perform it at the O f it. 
 time agreed on, or immediately and at a proper time if there 
 was no fixed term, and the other party would not admit of 
 it, the promiser is discharged from his promise : for the pro- 
 misee, not having reserved to himself a right to regulate the 
 performance of it at his own pleasure, is accounted to re- 
 nounce it by not accepting of it in proper season and at the 
 time for which the promise was made. Should he desire that 
 the performance be deferred till another time, the promiser [ 442 ] 
 is in honour bound to consent to the prolongation, unless he 
 can show by very good reasons that the promise would then 
 become more inconvenient to him. 
 
 To levy contributions is an act of hostility which ought to \ 29. Ces- 
 cease as soon as peace is concluded ( 24). Those which are sation of 
 already promised, but not yet paid, are a debt actually due ; J^" 1311 ' 
 and, as such, the payment may be insisted on. But, in 
 order to obviate all difficulty, it is proper that the contracting 
 parties should clearly and minutely explain their intentions 
 respecting matters of this nature ; and they are generally 
 careful to do so. 
 
 The fruits and profits of those things which are restored | so. Pro- 
 by a treaty of peace are due from the instant appointed for du . cts of the 
 carrying it into execution : and if no particular period has *^Jf d ^ 
 been assigned, they are due from the moment when the re- ceded . 
 stitution of the things themselves was agreed to : but those 
 which were already received or become payable before the 
 conclusion of the peace, are not comprised in the restitution ; 
 
 559
 
 442 OF EXECUTION OF THE 
 
 BOOK iv. for the fruits and profits belong to the owner of the soil ; and, 
 CHAP - In - in the case in question, possession is accounted a lawful title. 
 For the same reason, in making a cession of the soil, we do 
 not include in that cession the rents and profits antecedently 
 due. This Augustus justly maintained against Sextus Pom- 
 pey, who, on receiving a grant of the Peloponnesus, claimed 
 the imposts of the preceding years.* 
 
 31. in Those things, of which the restitution is, without further 
 what condi- explanation, simply stipulated in the treaty of peace, are to 
 tion things k e restored in the same state in which they were when taken : 
 stored b **' f T ^ e wor( ^ "restitution" naturally implies that every thing 
 should be replaced in its former condition. Thus, the resti- 
 tution of a thing is to be accompanied with that of all the 
 rights which were annexed to it when taken. But this rule 
 must not be extended to comprise those changes which may 
 have been the natural consequences and effects of the war 
 itself and of its operations. A town is to be restored in the 
 condition it was in when taken, as far as it still remains in 
 that condition at the conclusion of the peace. But if the 
 town has been razed or dismantled during the war, that da- 
 mage was done by the right of arms, and is buried in oblivion 
 by the act of amnesty. We are under no obligation to repair 
 the ravages that have been committed in a country which we 
 restore at the peace ; we restore it in its existing state. But, 
 as it would be a flagrant perfidy to ravage that country after 
 the conclusion of the peace, the case is the same with respect 
 to a town whose fortifications have escaped the devastation of 
 war : to dismantle it previous to the restoration would be a viola- 
 tion of good faith and honour. If the captor has repaired 
 the breaches, and put the place in the same state it was in 
 before the siege, he is bound to restore it in that state. If he 
 [ 443 ] has added any new works, he may indeed demolish these : 
 but if he has razed the ancient fortifications, and constructed 
 others on a new plan, it will be necessary to come to a parti- 
 cular agreement respecting this improvement, or accurately 
 to define in what condition the place shall be restored. In- 
 deed this last precaution should in every case be adopted, in 
 order to obviate all dispute and difficulty. In drawing up an 
 instrument solely intended for the restoration of peace, it 
 should be the object of the parties to leave, if possible, no 
 ambiguity whatever, nothing which may have a tendency to 
 rekindle the flames of war. I am well aware, however, that 
 this is not the practice of those who value themselves now-a- 
 days on their superior abilities in negotiation : on the con- 
 trary, they study to introduce obscure or ambiguous clauses 
 into a treaty of peace, in order to furnish their sovereign with 
 a pretext for broaching a new quarrel and taking up arms 
 again on the first favourable opportunity. How contrary 
 
 * Appian. de Bell. Civ. lib. v., quoted by Grotius, lib. ii. cap. 20, 22.
 
 TREATY OF PEACE. 443 
 
 such pitiful finesse is to the faith of treaties, we have already BOOK rv. 
 observed (Book II. 231) : it is a disparagement of that can- CHAP ' Iir ', 
 dour and magnanimity which should beam forth in all the 
 actions of a great prince. 
 
 But, as it is extremely difficult wholly to avoid ambiguity 32 - Th 
 in a treaty, though worded with the greatest care and the i terpreta " 
 most honourable intentions, and to obviate every doubt t *" t of 
 which may arise in the application of its several clauses to peace is to 
 particular cases, recourse must often be had to the rules of t>e against 
 interpretation. We have already devoted an entire chapter the su ^j^f 
 to the exposition of those important rules :* wherefore, instead par y ' 
 of entering at present into tedious repetitions, we shall con- 
 fine ourselves to a few rules more particularly adapted to the 
 special case before us, the interpretation of treaties of 
 peace. 1. In case of doubt, the interpretation goes against 
 him who prescribed the terms of the treaty : for as it was 
 in some measure dictated by him, it was his own fault if he 
 neglected to express himself more clearly : and by extending 
 or restricting the signification of the expressions to that 
 meaning which is least favourable to him, we either do him no 
 injury, or we only do him that to which he has wilfully ex- 
 posed himself; whereas, by adopting a contrary mode of in- 
 terpretation, we would incur the risk of converting vague or 
 ambiguous terms into so many snares to entrap the weaker 
 party in the contract, who has been obliged to subscribe to 
 what the stronger had dictated. 
 
 2. The names of countries ceded by treaty are to be under- ? 33 - Names 
 stood according to the usage prevailing at the time among of ced ? d 
 skilful and intelligent men : for it is not to be presumed that COIJ 
 weak or ignorant persons should be intrusted with so import- 
 ant a concern as that of concluding a treaty of peace ; and 
 
 the articles of a contract are to be understood of what the 
 contracting parties most probably had in contemplation, 
 since the object in contemplation is the motive and ground 
 of every contract. 444 J 
 
 3. The treaty of peace naturally and of itself relates only g 34. Resto- 
 to the war which it terminates. It is, therefore, in such re- rntionnott<) 
 lation only, that its vague clauses are to be understood. ^"j^" 
 Thus, the simple stipulation of restoring things to their those wno - 
 former condition does not relate to changes which have not have voiun- 
 been occasioned by the war itself: consequently, this general tarfiy given 
 clause cannot oblige either of the parties to set at liberty a ^ hcmBelTes 
 free people who have voluntarily given themselves up to him up ' 
 during the war. And as a people, when abandoned by their 
 sovereign, become free, and may provide for their own safety 
 
 in whatever manner they think most advisable (Book I. 
 
 (190) As to the construction of treaties in general, see Book II. Chap. XVII. 
 
 262, ante, 244. C. 
 
 * Book II. Chap. XVII. ante, 244274. 
 
 71 561
 
 444 OF OBSERVANCE AND BREACH 
 
 BOOK iv. 202) if such people, during the course of the war, have 
 CHAP, m.^ voluntarily, and without military compulsion, submitted and 
 given themselves up to the enemy of their former sovereign, 
 the general promise of restoring conquests shall not extend 
 to them. It were an unavailing plea, to allege that the party 
 who requires all things to be replaced on their former footing 
 may have an interest in the independence of the former of 
 those people, and that he evidently has a very great one in 
 the restoration of the latter. If he wished to obtain things 
 which the general clause does not of itself comprise, he should 
 have clearly and specifically expressed his intentions relative 
 to them. Stipulations of every kind may be inserted in a 
 treaty of peace ; but if they bear no relation to the war 
 which it is the view of the contracting parties to bring to a 
 conclusion, they must be very expressly specified ; for the 
 treaty is naturally understood to relate only to its own parti- 
 cular object. 
 
 ?*>- ** CHAP. IV. 
 
 OF THE OBSERVANCE AND BREACH OF THE TREATY OF PEACE. 
 
 g 35. The THE treaty of peace concluded by a lawful power is un- 
 
 treaty of doubtedly a public treaty, and obligatory on the whole na- 
 
 thTnluon taon'(Book II. 154). It is likewise, by its nature, a real 
 
 and socces- treaty ; for if its duration had been limited to the life of the 
 
 sore. sovereign, it would be only a truce, and not a treaty of peace. 
 
 Besides, every treaty which, like this, is made with a view to 
 
 the public good, is a real treaty (Book II. 198). It is 
 
 therefore as strongly binding on the successors as on the 
 
 prince himself who signed it, since it binds the state itself, 
 
 and the successors can never have, in this respect, any other 
 
 rights than those of the state. 
 
 ? 36. It is After all we have said on the faith of treaties and the in- 
 to be faith- <Jigp ensa ble obligation which they impose, it would be super- 
 served, fluous to use many words in showing how religiously treaties 
 of peace in particular should be observed both by sovereigns 
 and people. These treaties concern and bind whole nations ; 
 they are of the highest importance ; the breach of them in- 
 [ 445 ] fallibly rekindles the flames of war ; all which considerations 
 give additional force to the obligation of keeping our faith, 
 and punctually fulfilling our promises. 
 
 g 37. The We cannot claim a dispensation from the observance of a 
 
 pica of fear treaty of peace, by alleging that it was extorted from us by 
 
 or force fQ a ,f ) Qr ^g^gd f r0 m us by force. In the first place, were 
 
 1S ~ this plea admitted, it would destroy, from the very founda- 
 
 562
 
 OF THE TREATY OF PEACE. 445 
 
 tions, all the security of treaties of peace ; for there are BOOK iv. 
 few treaties of that kind, which might not be made to afford CHAP ' IV- 
 such a pretext, as a cloak for the faithless violation of them. P ense ih 
 To authorize such an evasion would be a direct attack on the *^, e bs 
 common safety and welfare of nations : the maxim would an( 
 be detestable, for the same reasons which have universally 
 established the sacredness of treaties (Book II. 220). Be- 
 sides, it would generally be disgraceful and ridiculous to ad- 
 vance such a plea. At the present day, it seldom happens 
 that either of the belligerent parties perseveres to the last 
 extremity before he will consent to a peace. Though a 
 nation may have lost several battles, she can still defend 
 herself: as long as she has men and arms remaining, she is 
 not destitute of all resource. If she thinks fit, by a disad- 
 vantageous treaty, to procure a necessary peace, if by great 
 sacrifices she delivers herself from imminent danger or total 
 ruin, the residue which remains in her possession is still an 
 advantage for which she is indebted to the peace : it was her 
 own free choice to prefer a certain and immediate loss, but of 
 limited extent, to an evil of a more dreadful nature, which, 
 though yet at some distance, she had but too great reason 
 to apprehend. 
 
 If ever the plea of constraint may be alleged, it is against 
 an act which does not deserve the name of a treaty of peace, 
 against a forced submission to conditions which are equally 
 offensive to justice and all the duties of humanity. If an un- 
 just and rapacious conqueror subdues a nation, and forces her 
 to accept of hard, ignominious, and insupportable conditions, 
 necessity obliges her to submit : but this apparent tranquillity 
 is not a peace ; it is an oppression which she endures only so 
 long as she wants the means of shaking it off, and against 
 which men of spirit rise on the first favourable opportunity. 
 When Ferdinand Cortes attacked the empire of Mexico without 
 any shadow of reason, without even a plausible pretext, if 
 the unfortunate Montezuma could have recovered his liberty 
 by submitting to the iniquitous and cruel conditions of re- 
 ceiving Spanish garrisons into his towns and his capital, of 
 paying an immense tribute, and obeying the commands of the 
 king of Spain, will any man pretend to assert that he would 
 not have been justifiable in seizing a convenient opportunity 
 to recover his rights, to emancipate his people, and to expel 
 or exterminate the Spanish horde of greedy, insolent, and 
 cruel usurpers ? No ! such a monstrous absurdity can never 
 be seriously maintained. Although the law of nature aims 
 at protecting the safety and peace of nations by enjoying the 
 faithful observance of promises, it does not favour oppressors. [ 44G ] 
 All its maxims tend to promote the advantage of mankind : 
 that is the end of all laws and rights. Shall he, who with his 
 own hand tears asunder all the bonds of human society, be 
 afterwards allowed to claim the benefit of them? Even 
 
 563
 
 446 
 
 OF OBSERVANCE AND BKEACH 
 
 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 
 
 though it were to happen that this maxim should be abused, 
 and that a nation should, on the strength of it, unjustly rise 
 in arms and recommence hostilities, still it is better to risk 
 that inconvenience than to furnish usurpers with an easy mode 
 of perpetuating their injustice, and establishing their usurpa- 
 tion on a permanent basis. Besides, were you to preach up 
 the contrary doctrine which is so- repugnant to all the feelings 
 and suggestions of nature, where could you expect to make 
 proselytes ? 
 
 Equitable agreements, therefore, or at least such as are 
 supportable, are alone entitled to the appellation of treaties 
 of peace : these are the treaties which bind the public faith, 
 and which are punctually to be observed, though in some re- 
 spects harsh and burdensome. Since the nation consented 
 to them, she must have considered them as in some measure 
 advantageous under the then existing circumstances ; and she 
 is bound to respect her promise. Were men allowed to rescind 
 at a subsequent period those agreements to which they were 
 glad to subscribe on a former occasion, there would be an end 
 to all stability in human affairs. 
 
 The breach of a treaty of peace consists in violating the 
 engagements annexed to it, either by doing what it prohibits, 
 or by not doing what it prescribes. Now, the engagements 
 contracted by treaty may be violated in three different ways, 
 either by a conduct that is repugnant to the nature and es- 
 sence of every treaty of peace in general, by proceedings 
 which are incompatible with the particular nature of the treaty 
 in question, or, finally, by the violation of any article ex- 
 pressly contained in it. 
 
 First, a nation acts in a manner that is repugnant to the 
 nature and essence of every treaty of peace, and to peace 
 itself, when she disturbs it without cause, either by taking up 
 arms and recommencing hostilities without so much as a plau- 
 sible pretext, or by deliberately and wantonly offending the 
 party with whom she has concluded a peace, and offering such 
 treatment to him or his subjects as is incompatible with the 
 state of peace, and such as he cannot submit to without being 
 deficient in the duty which he owes to himself. It is likewise 
 acting contrary to the nature of all treaties of peace to take 
 up arms a second time for the same subject that had given 
 rise to the war which has been brought to a conclusion, or 
 through resentment of any transaction that had taken place 
 during the continuance of hostilities. If she cannot allege at 
 least some plausible pretext borrowed from a fresh cause, 
 which may serve to palliate her conduct, she evidently revives 
 the old war that was extinct, and breaks the treaty of peace. 
 
 But to take up arms for a fresh cause is no breach of the 
 treaty of peace : for though a nation has promised to live in 
 peace, she has not therefore promised to submit to injuries 
 and wrongs of every kind, rather than procure justice by force 
 
 564
 
 OF THE TREATY OF PEACE. 446 
 
 of arms. The rupture proceeds from him who, by his ob- BOOK IY. 
 stinate injustice, renders this method necessary. CHAP, iv. 
 
 But here it is proper to recall to mind what we have more is no breach 
 than once observed, namely, that nations acknowledge no of the treat y 
 common judge on earth, that they cannot mutually con- of peace> 
 demn each other without appeal, and, finally, that they [ 447 ] 
 are bound to act in their quarrels as if each was equally in 
 the right. On this footing, whether the new cause which 
 gives birth to hostilities be just or not, neither he who makes 
 it a handle for taking up arms, nor he who refuses satisfac- 
 tion, is reputed to break the treaty of peace, provided the 
 cause of complaint on the one hand, and the refusal of satis- 
 faction on the other, have at least some colour of reason, so 
 as to render the question doubtful. When nations cannot 
 come to any agreement on questions of this kind, their only 
 remaining resource is an appeal to the sword. In such case 
 the war is absolutely a new one, and does not involve any in- 
 fraction of the existing treaty. 
 
 And as a nation, in making a peace, does not thereby give? 41 - A sub- 
 up her right of contracting alliances and assisting her friends, se< i uent f 1 - 
 it is likewise no breach of the treaty of peace to form a sub- anTnemy is 
 sequent alliance with the enemies of the party with whom she likewise no 
 has concluded such treaty, to join them, to espouse their breach of 
 quarrel, and unite her arms with theirs, unless the treaty the ^^y- 
 expressly prohibits such connections. At most, she can only 
 be said to embark in a fresh war in defence of another 
 people's cause. 
 
 But I here suppose these new allies to have some plausible 
 grounds for taking up arms, and that the nation in question 
 has just and substantial reasons for supporting them in the 
 contest. Otherwise, to unite with them just as they are en- 
 tering on the war, or when they have already commenced 
 hostilities, would be evidently seeking a pretext to elude the 
 treaty of peace, and no better, in fact, than an artful and 
 perfidious violation of it. 
 
 It is of great importance to draw a proper distinction be- ? * 2 - wh y a 
 tween a new war and the breach of an existing treaty of Distinction 
 peace, because the rights acquired by such treaty still subsist, ^ a ^ e ^ e , 
 notwithstanding the new war : whereas they are annulled by tween a new 
 the rupture of the treaty on which they were founded. It is w &r and a 
 true, indeed, that the party who had granted those rights 
 does not fail to obstruct the exercise of them during the course 
 of the war, as far as lies in his power, and even may, by 
 the right of arms, wholly deprive his enemy of them, as well 
 as he may wrest from him his other possessions. But in that 
 case he withholds those rights as things taken from the 
 enemy, who, on a new treaty of peace, may urge the restitu- 
 tion of them. In negotiations of that kind, there is a ma- 
 terial difference between demanding the restitution of what 
 we were possessed of before the war, and requiring new con- 
 
 2X 565
 
 448 OF OBSERVANCE AND BREACH 
 
 )K IV. 
 
 cessions : a little equality in our successes entitles us to in- 
 CHAP - IV - sist on the former, whereas nothing less than a decided supe- 
 riority can give us a claim to the latter, it often happens, 
 when nearly equal success has attended the arms of both par- 
 ties, that the belligerent powers agree mutually to restore 
 their conquests, and to replace every thing in its former state. 
 When this is the case, if the war in which they were en- 
 gaged was a new one, the former treaties still subsist ; but 
 if those treaties were broken by taking up arms a second 
 time for the same subject, and an old war was revived, they 
 remain void ; so that, if the parties wish they should again 
 take effect, they must expressly specify and confirm them 
 in their new treaty. 
 
 The question before us is highly important in another 
 view also, that is, in its relation to other nations who may be 
 interested in the treaty, inasmuch as their own affairs require 
 them to maintain and enforce the observance of it. It is of 
 the utmost consequence to the guarantees of the treaty, if 
 there are any, and also to the allies, who have to discover 
 and ascertain the cases in which they are bound to furnish 
 assistance. Finally, he who breaks a solemn treaty is much 
 more odious than the other, who, after making an ill-grounded 
 demand, supports it by arms. The former adds perfidy to 
 injustice : he strikes at the foundation of public tranquillity ; 
 and as he thereby injures all nations, he affords them just 
 grounds for entering into a confederacy in order to curb and 
 repress him. Wherefore, as we ought to be cautious of im- 
 puting the more odious charge, Grotius justly observes, that, 
 in a case of doubt, and where the recurrence to arms may be 
 vindicated by some specious pretext resting on a new ground, 
 "it is better that we should, in the conduct of him who takes 
 up arms anew, presume simple injustice, unaccompanied by 
 perfidy, than account him at once guilty both of perfidy and 
 injustice."* 
 
 g 43. Justi- Justifiable self-defence is no breach of the treaty of peace. 
 Cable self- It is a natural right which we cannot renounce : and, in pro- 
 defence is nriging to live in peace, we only promise not to attack without 
 of the^trea cause an( ^ * abstain from injuries and violence. But there 
 ty . are two modes of defending our persons or our property : 
 
 sometimes the violence offered to us will admit of no other 
 remedy than the exertion of open force ; and under such cir- 
 cumstances, we may lawfully have recourse to it. On other 
 occasions, we may obtain redress for the damage and injury 
 by gentler methods ; and to these we ought of course to give 
 the preference. Such is the rule of conduct which ought to 
 be observed by two nations that are desirous of maintaining 
 peace, whenever the subjects of either have happened to break 
 out into any act of violence. Present force is checked and 
 
 * Lib. iii. cap. 20, 28.
 
 OF THE TREATY OF PEACE. 448 
 
 repelled by force. But, if there is question of obtaining BOOK rv. 
 reparation of the damage done, together with adequate satis- CHAP ' w ' 
 faction for the offence, we must apply to -the sovereign of the 
 delinquents : we must not pursue them into his dominions, or 
 have recourse to arms, unless he has refused to do us justice. 
 If we have reason to fear that the offenders will escape, as, r 449 1 
 for instance, if a band of unknown persons from a neighbour- 
 ing country have made an irruption into our territory, we 
 are authorized to pursue them with an armed force into their 
 own country, until they be seized : and their sovereign can- 
 not consider our conduct in any other light than that of just 
 and lawful self-defence, provided we commit no hostilities 
 against innocent persons. 
 
 When the principal contracting party has included his al- 44- Causes 
 lies in the treaty, their cause becomes in this respect insepa- of 
 rable from his ; and they are entitled, equally with him, to 
 enjoy all the conditions essential to a treaty of peace ; so 
 that any act, which, if committed against himself, would be a 
 breach of the treaty, is no less a breach of it, if committed 
 against the allies whom he has caused to be included in his 
 treaty. If the injury be done to a new ally, or to one who 
 is not included in the treaty, it may, indeed, furnish a new 
 ground for war, but is no infringement of the treaty of peace. 
 
 The second way of breaking a treaty of peace is by doing ? 45. 2. The 
 any thing contrary to what the particular nature of the treaty treaty is 
 requires. Thus, every procedure that is inconsistent with w ^ at e ^ C o n _ 
 the rules of friendship is a violation of a treaty of peace trary to its 
 which has been concluded under the express condition of particular 
 thenceforward living in amity and good understanding. To nature - 
 favour a nation's enemies, to give harsh treatment to her ' 
 subjects, to lay unnecessary restrictions on her commerce, 
 or give another nation a preference over her without reason, 
 to refuse assisting her with provisions, which she is willing 
 to pay for, and we ourselves can well spare, to protect her 
 factious or rebellious subjects, to afford them an asylum, 
 all such proceedings are evidently inconsistent with the laws 
 of friendship. To this list, may, according to circumstances, 
 be also added the building of fortresses on the frontiers of 
 a state, expressing distrust against her, levying troops, 
 and refusing to acquaint her with the motives of such step, 
 &c. (191) But, in affording a retreat to exiles, in har- 
 bouring subjects who chose to quit their country, without an 
 intention of injuring it by their departure, and solely for the 
 advantage of their private affairs, in charitably receiving 
 emigrants who depart from their country with a view to en- 
 joy liberty of conscience elsewhere, there is nothing incon- 
 sistent with the character of a friend. The private laws of 
 friendship do not, according to the caprice of our friends, dis- 
 
 (191) And see, ante, Book in. c. 3, as to what are just causes of war. C. 
 
 567
 
 449 OF OBSERVANCE AND BREACH 
 
 BOOK iv. 
 CHAP. iv. 
 
 pense with our observance of the common duties of humanity 
 which we owe to the rest of our species. 
 46. 3. By Lastly, the peace is broken by the violation of any of the 
 the violation express articles of the treaty. This third way of breaking it 
 of^any arti- j g ^ Q mos t decisive, the least susceptible of quibble or evasion. 
 Whoever fails in his engagements annuls the contract as far 
 as depends on him : this cannot admit of a doubt, 
 g 47. The But it is asked whether the violation of a single article of 
 violation of the treaty can operate a total rupture of it ? Some writers,* 
 tide breiSw ^ ere drawing a distinction between the articles that are con- 
 the whole nected together (connexi) and those that stand detached and 
 treaty. separate (diversi], maintain, that, although the treaty be vio- 
 lated in the detached articles, the peace nevertheless still 
 [ 450 ] subsists with respect to the others. But, to me, the opinion of 
 Grotius appears evidently founded on the nature and spirit 
 of treaties of peace. That great man says that all the arti- 
 cles of one and the same treaty are conditionally included in 
 each other, as if each of the contracting parties had formally 
 said, "I will do such or such thing, provided that, on your 
 part, you do so and so;"f an ^ he justly adds, that, when it 
 is designed that the engagement shall not be thereby rendered 
 ineffectual, this express clause is inserted, that, "though 
 any one of the articles of the treaty may happen to be vio- 
 lated, the others shall subsist in full force." Such an agree- 
 ment may unquestionably be made. It may likewise be 
 agreed that the violation of one article shall only annul those 
 corresponding to it, and which, as it were, constitute the 
 equivalent to it. But, if this clause be not expressly inserted 
 in the treaty of peace, the violation of a single article over- 
 throws the whole treaty, as we have proved above, in speak- 
 ing of treaties in general (Book II. 202). 
 
 2 48. Whe- It is equally nugatory to attempt making a distinction in 
 t'her a dis- this instance between the articles of greater and those of 
 tinction may ] esser importance. According to strict justice, the violation 
 hCr <i b b ^ ^ e mos t trifling article dispenses the injured party from 
 tween the the observance of the others, since they are all, as we have 
 more and seen above, connected with each other, as so many conditions, 
 the less im- Besides, what a source of dispute will such a distinction lay 
 open ! Who shall determine the importance of the article 
 violated ? We may, however, assert with truth, that, to be 
 ever ready to annul a treaty on the slightest cause of com- 
 plaint, is by no means consonant to the reciprocal duties of 
 nations, to that mutual charity, that love of peace, which 
 should always influence their conduct. 
 
 j? 49. Pe- In order to prevent so serious an inconvenience, it is pru- 
 
 naity an- dent to agree on a penalty to be suffered by the party who 
 
 nexed to the V i i a tes any of the less important articles : and then, on his 
 
 submitting to the penalty, the treaty still subsists in full force. 
 
 ~~*See Wolf. Jus Gent gg 1022, 1023. f >> "* cap. xix. 14. 
 
 568
 
 OF THE TREATY OF PEACE. 450 
 
 In like manner, there may, to the violation of each individual BOOK rv. 
 article, be annexed a penalty proportionate to its importance. 
 
 We have treated of this subject in our remarks on truces violation of 
 (Book III. 243), to which we refer the reader. an article - 
 
 Studied delays are equivalent to an express denial, and % 50. Stu- 
 differ from it only by the artifice with which he who practises died delays, 
 them seeks to palliate his want of faith : he adds fraud to per- 
 fidy, and actually violates the article which he should fulfil. 
 
 But, if a real impediment stand in the way, time must be \ 51. Insur- 
 allowed ; for no one is bound to perform impossibilities. And mountabie 
 for the same reason, if any insurmountable obstacle should ^^g 1 " 
 render the execution of an article not only impracticable for 
 the present, but for ever impossible, no blame is imputable 
 to him who had engaged for the performance of it; nor can his 
 inability furnish the other party with a handle for annulling [ 451 ] 
 the treaty : but the latter should accept of an indemnification, 
 if the case will admit of it, and the indemnification be prac- 
 ticable. However, if the thing which was to have been per- 
 formed in pursuance of the article in question be of such a 
 nature that the treaty evidently appears to have been con- 
 cluded with a sole view to that particular thing, and not to 
 any equivalent, the intervening impossibility undoubtedly 
 cancels the treaty. Thus, a treaty of protection becomes void 
 when the protector is unable to afford the promised protection, 
 although his inability does not arise from any fault on his 
 part. In the same manner, also, whatever promises a sove- 
 reign may have made on condition that the other party should 
 procure him the restoration of an important town, he is re- 
 leased from the performance of every thing which he had pro- 
 mised as the purchase of the recovery, if he cannot be put in 
 possession. Such is the invariable rule of justice. But rigid 
 justice is not always to be insisted on : peace is so essential 
 to the welfare of mankind, and nations are so strictly bound 
 to cultivate it, to procure it, and to re-establish it when inter- 
 rupted, that, whenever any such obstacles impede the exe- 
 cution of a treaty of peace, we ought ingenuously to accede 
 to every reasonable expedient, and accept of equivalents or 
 indemnifications, rather than cancel a treaty of peace already 
 concluded, and again have recourse to arms. 
 
 We have already, in an express chapter (Book II. Chap. 1 52. infrae- 
 VI.), examined how and on what occasions the actions of tions of the 
 subjects may be imputed to the sovereign and the nation. It ^ 
 is by that circumstance we must be guided in determining how 
 far the proceedings of the subjects may be capable of annul- 
 ling a treaty of peace. They cannot produce such effect un- 
 less so far as they are imputable to the sovereign. He who 
 is injured by the subjects of another nation takes satisfaction 
 for the offence, himself, when he meets with the delinquents 
 in his own territories, or in a free place, as, for instance, on 
 the open sea ; or if it be more agreeable to him, he demands 
 
 72 2x2 569
 
 451 OF OBSERVANCE AND BREACH OF TREATY, ETC. 
 
 BOOK iv. justice of their sovereign. If the offenders are refractory 
 CHAP ' 1V- subjects, no demand can be made on their sovereign ; but 
 whoever can seize them, even in a free place, executes sum- 
 mary justice on them himself. Such is the mode observed 
 towards pirates : and, in order to obviate all misunderstand- 
 ings, it is generally agreed that the same treatment be given 
 to all private individuals who c6mmit acts of hostility without 
 being able to produce a commission from their sovereign. 
 53. Or by The actions of our allies are still less imputable to us than 
 allies. those of our subjects. The infractions of a treaty of peace 
 by allies, even by those who have been included in it, or who 
 joined in it as principals, can therefore produce no rupture 
 of it except with regard to themselves, and do not affect it in 
 [ 452 ] what concerns their ally, who, on his part, religiously ob- 
 serves his engagements. With respect to him, the treaty sub- 
 sists in full force, provided he do not undertake to support 
 the cause of those perfidious allies. If he furnishes them with 
 such assistance as he cannot be bound to give them on an oc- 
 casion of this nature, he espouses their quarrel, and becomes 
 an accomplice in their breach of faith. But, if he has an in- 
 terest in preventing their ruin, he may interpose, and, by 
 obliging them to make every suitable reparation, save them 
 from an oppression of which he would himself collaterally feel 
 the effects. It even becomes an act of justice to undertake 
 their defence against an implacable enemy, who will not be 
 contented with an adequate satisfaction. 
 
 \ 54. Right When the treaty of peace is violated by one of the con- 
 of the tracting parties, the other has the option of either declaring 
 art nded the treat J nul1 ant * v id> or allowing it still to subsist : for a 
 against him contract which contains reciprocal engagements, cannot be 
 who has vio- binding on him with respect to the party who on his side 
 lated the pays no regard to the same contract. But, if he chooses not 
 treaty. ^ Q come ^ a ru pture, the treaty remains valid and obligatory. 
 It would be absurd that he who had been guilty of the vio- 
 lation should pretend that the agreement was annulled by his 
 own breach of faith : this would, indeed, be an easy way of 
 shaking off engagements, and would reduce all treaties to 
 empty formalities. If the injured party be willing to let 
 the treaty subsist, he may either pardon the infringement, 
 insist on an indemnification or adequate satisfaction, or 
 discharge himself, on his part, from those engagements cor- 
 responding with the violated article, those promises he had 
 made in consideration of a thing which has not been performed. 
 But, if he determines on demanding a just indemnification, 
 and the party in fault refuses it, then the treaty is necessa- 
 rily broken, and the injured party has a very just cause for 
 taking up arms again. And indeed this is generally the case ; 
 for it seldom happens that the infractor will submit to make 
 reparation, and thereby acknowledge himself in fault. 
 
 570 

 
 OF THE RIGHT OF EMBASSY. 452 
 
 BOOK IV. 
 CHAP. T. 
 
 CHAP. V. 
 
 OF THE RIGHT OF EMBASSY, OR THE RIGHT OF SENDING AND 
 RECEIVING PUBLIC MINISTERS. 
 
 IT is necessary that nations should treat and hold inter- \ 55. it is 
 course together, in order to promote their interests, to avoid necessary 
 injuring each other, and to adiust and terminate their dis- * hat n t*, lo r 8 
 
 > . , 11 i 11 IT be enabled 
 
 putes. And as they all lie under the indispensable obligation to treat and 
 of giving their consent and concurrence to whatever conduces communi- 
 to the general advantage and welfare (Prelim. 13) of cate to s e - 
 procuring the means of accommodating and terminating their tben 
 differences (Book II. 323, &c.) and as each has a right to 
 every thing which her preservation requires (Book I. 18) r 453 ] 
 to every thing which can promote her perfection without in- 
 juring others (Ib. 23), as also to the necessary means of ful- 
 filling her duties, it results from the premises, that each na- 
 tion is at once possessed of the right to treat and communicate 
 with others, and bound by reciprocal obligation to consent 
 to such communication as far as the situation of her affairs 
 will permit her. 
 
 But nations or sovereign states do not treat together im- g 56. They 
 mediately : and their rulers or sovereigns cannot well come do this b y 
 to a personal conference in order to treat of their affairs. ^ e *^ 7 
 Such interviews would often be impracticable; and, exclu- ministers, 
 sive of delays, trouble, expense, and so many other inconve- 
 niences, it is rarely, according to the observation of Philip 
 de Commines, that any good effect could be expected from 
 them. The only expedient, therefore, which remains for na- 
 tions and sovereigns, is to communicate and treat with each 
 other by the agency of procurators or mandatories, of dele- 
 gates charged with their commands, and vested with their 
 powers, that is to say, public ministers. This term, in its 
 more extensive and general sense, denotes any person intrust- 
 ed with the management of public affairs, but is more par- 
 ticularly understood to designate one who acts in such capa- 
 city at a foreign court. 
 
 At present there are several orders of public ministers, 
 and in the sequel we shall speak of them ; but whatever dif- 
 ference custom has introduced between them, the essential 
 character is common to them all ; I mean that of minister, 
 and, in some sort, representative of a foreign power, a per- 
 son charged with the commands of that power, and delegated 
 to manage his affairs : and that quality is sufficient for our 
 present purpose. 
 
 Every sovereign state then has a right to send and to re- \ 57. Every 
 ceive public ministers; for they are necessary instruments sovereign 
 
 571
 
 453 OF THE RIGHT OF EMBASSY. 
 
 BOOK iv. in the management of those affairs -which sovereigns have to 
 CHAP. j^ transact with each other, and the channels of that correspond- 
 
 state has a ence which they have a right to carry on. In the first chapter 
 right to send O f this work may be seen who are those sovereigns, and what 
 a ubiic C m? 6 those independent states, that are entitled to rank in the great 
 nisters. * society of nations. They are the powers to whom belongs the 
 
 right of embassy. 
 
 58. An un- An unequal alliance, or even a treaty of protection, not 
 equal alii- b e mg incompatible with sovereignty (Book I. 5, 6), such 
 treat "of* treaties do not of themselves deprive a state of the right of 
 protection, sending and receiving public ministers. If the inferior ally 
 does not ' or the party protected has not expressly renounced the right 
 take away O f entertaining connections and treating with other powers, 
 this right ne necessar iiy retains that of sending ministers to them, and 
 
 of receiving their ministers in turn. The same rule applies 
 
 to such vassals and tributaries as are not subjects (Book I. 
 
 7, 8). 
 
 1 59. Right Nay more, this right may even belong to princes or commu- 
 of the nities not possessed of sovereign power : for the rights whose 
 pn cos f a ^ assemblage constitutes the plenitude of sovereignty, are not 
 empirein indivisible : and if, by the constitution of the state, by the 
 this respect, concession of the sovereign, or by reservations which the 
 
 subjects have made with him, a prince or community remains 
 [ 454 ] possessed of any one of those rights which usually belong to 
 the sovereign alone, such prince or community may exercise 
 it, and avail themselves of it in all its effects and all its natu- 
 ral or necessary consequences, unless they have been for- 
 mally excepted. Though the princes and states of the empire 
 are dependent on the emperor and the empire, yet they are 
 sovereign in many respects ; and as the constitutions of the 
 empire secure to them the right of treating with foreign 
 powers and contracting alliances with them, they incontest- 
 ably have also that of sending and receiving public ministers. 
 The emperors, indeed, when they felt themselves able to carry 
 their pretensions very high, have sometimes disputed that right, 
 or at least attempted to render the exercise of it subject to 
 the control of their supreme authority, insisting that their 
 permission was necessary to give it a sanction. But since 
 the peace of Westphalia, and by means of the imperial capi- 
 tulations, the princes and states of Germany have been able 
 to maintain themselves in the possession of that right ; and 
 they have secured to themselves so many other rights, that 
 the empire is now considered as a republic of sovereigns. 
 
 1 60. Cities There are even cities which are and which acknowledge 
 that have themselves to be in a state of subjection, that have never- 
 the right of t ne i esg a right to receive the ministers of foreign powers, and 
 
 iner ' to send them deputies, since they have a right to treat with 
 them. This latter circumstance is the main point upon which 
 the whole question turns : for whosoever has a right to the 
 end, has a right to the means. It would be absurd to ac- 
 
 572
 
 OF THE EIGHT OF EMBASSY. 454 
 
 knowledge the right of negotiating and treating, and to con- BOOK IT. 
 test the necessary means of doing it. Those cities of Swit- CHAP -, T - . 
 
 zerland, such as Neufchatel and Bienne, which have the right 
 of banner, have, by natural consequence, a right to treat with 
 foreign powers, although the cities in question be subject to 
 the dominion of a prince : for the right of banner, or of arms, 
 comprehends that of granting succours of troops,* provided 
 such grants be not inconsistent with the service of the prince. 
 Now, if those cities are entitled to grant troops, they must 
 necessarily be at liberty to listen to the applications made to 
 them on the subject by a foreign power, and to treat respect- 
 ing the conditions. Hence it follows that they may also 
 depute an agent to him for that purpose, or receive his mi- 
 nisters. And as they are at the same time vested with the 
 administration of their own internal police, they have it in 
 their power to insure respect to such foreign ministers as 
 come to them. "What is here said of the rights of those cities 
 is confirmed by ancient and constant practice. However ex- 
 alted and extraordinary such rights may appear, they will 
 not be thought strange, if it be considered that those very 
 cities were already possessed of extensive privileges at the 
 time when their princes were themselves dependent on the 
 emperors, or on other liege lords who were immediate vassals [ 455 ] 
 of the empire. When the princes shook off the yoke of vas- 
 salage, and established themselves in a state of perfect inde- 
 pendence, the considerable cities in their territories made 
 their own conditions ; and instead of rendering their situation 
 worse, it was very natural that they should take hold of ex- 
 isting circumstances, in order to secure to themselves a greater 
 portion of freedom and happiness. Their sovereigns cannot 
 now advance any plea in objection to the terms on which those 
 cities consented to follow their fortunes and to acknowledge 
 them as their only superiors. 
 
 Viceroys and chief governors of a sovereignty or remote 61. Minis- 
 province have frequently the right of sending and receiving ters of vice- 
 public ministers ; but, in that particular, they act in the roys- 
 name and by the authority of the sovereign whom they re- 
 present, and whose rights they exercise. That entirely depends 
 on the will of the master by whom they are delegated. The 
 viceroy of Naples, the governors of Milan, and the governors- 
 general of the Netherlands for Spain, were invested with such 
 power. 
 
 The right of embassy, like all the other rights of sove- 62 - Minis- 
 reignty, originally resides in the nation as its principal and ^"^ * e of 
 primitive subject. During an interregnum, the exercise of thTgents 
 that right reverts to the nation, or devolves on those whom during an 
 the laws have invested with the regency of the state. They interreg- 
 may send ministers in the same manner as the sovereign num - 
 
 * See the History of the Helvetic Confederacy, by M. de Watteville. 
 
 573
 
 455 OF THE RIGHT OF EMBASSY. 
 
 BOOK rv. used to do ; and these ministers possess the same rights as 
 CHAP ' Y ' were enjoyed by those of the sovereign. The republic of Po- 
 land sends ambassadors while her throne is vacant : nor would 
 she suffer that they should be treated with less respect and 
 consideration than those who are sent while she has a king. 
 Cromwell effectually maintained the ambassadors of England 
 in the same rank and respeetability which they possessed 
 under the regal authority. 
 
 63. Of him Such being the rights of nations, a sovereign who attempts 
 
 who molests hi n( j er another from sending and receiving public ministers, 
 
 ttw exereue ^ oes n an i n J UI 75 an( * offends against the law of nations. It 
 
 of the right is attacking a nation in one of her most valuable rights, and 
 
 of embassy, disputing her title to that which nature herself gives to every 
 
 independent society: it is offering an insult to nations in 
 
 general, and tearing asunder the ties by which they are 
 
 united. 
 
 jf 64. What But this is to be understood only of a time of peace : war 
 in this? 1 * 16 " ltroc * uces Ot ^ er r igh ts - & allows us to cut off from an 
 speet'inu'me enem 7 a ^ his resources, and to hinder him from sending mi- 
 of war. nisters to solicit assistance. There are even occasions when 
 we may refuse a passage to the ministers of neutral nations, 
 who are going to our enemy. We are under no obligation to 
 allow them an opportunity of perhaps conveying him intelli- 
 gence of a momentous nature, and concerting with him the 
 means of giving him assistance, &e. This admits of no doubt, 
 for instance, in the case of a besieged town. No right can 
 [ 456 ] authorize the minister of a neutral power, or any other 
 person whatsoever, to enter the place without the besieger's 
 consent. But, in order to avoid giving offence to sovereigns, 
 good reasons rnnst be alleged for refusing to let their minis- 
 ters pass ; and with such reasons they must rest satisfied, if 
 they are disposed to remain neuter. Sometimes even a pas- 
 sage is refused to suspected ministers in critical and dubious 
 junctures, although there do not exist any open war. But 
 this is a delicate proceeding, which, if not justified by reasons 
 that are perfectly satisfactory, produces an acrimony that 
 easily degenerates into an open rupture. 
 
 \ 65. The As nations are obliged to correspond together, to attend to 
 
 m " nsterc)f the proposals and demands made to them, to keep open a 
 
 poweTis to f ree an ^ pa ^ e channel of communication for the purpose of 
 
 be received, mutually understanding each other's views and bringing their 
 
 disputes to an accommodation, a sovereign cannot, without 
 
 very particular reasons, refuse admitting and hearing the 
 
 minister of a friendly power, or of one with whom he is at 
 
 peace. But in case there be reasons for not admitting him 
 
 into the heart of the country, he may notify to him that he 
 
 will send proper persons to meet him at an appointed place 
 
 on the frontier, there to hear his proposals. It then becomes 
 
 the foreign minister's duty to stop at the place assigned : it 
 
 574
 
 OF THE RIGHT OF EMBASSY. 456 
 
 is sufficient that he obtains a hearing; that being the utmost BOOK TV. 
 that he has a right to expect. 
 
 The obligation, however, does not extend so far as to in- 66. Of re- 
 elude that of suffering at all times the residence of perpetual sident mi - 
 ministers, who are desirous of remaining at the sovereign's mster8 ' 
 court, although they have no business to transact with him. 
 It is natural, indeed, and perfectly conformable to the senti- 
 ments which nations ought mutually to entertain for each 
 other, that a friendly reception should be given to those resi- 
 dent ministers, when there is no inconvenience to be appre- 
 hended from their stay. But if there exist any substantial 
 reason to the contrary, the advantage of the state undoubt- 
 edly claims a preference ; and the foreign sovereign cannot 
 take it amiss if his minister be requested to withdraw, when 
 he has fulfilled the object of his commission, or when he has 
 not any business to transact. The custom of keeping every 
 where ministers constantly resident is now so firmly esta- 
 blished, that whoever should refuse to conform to it, must 
 allege very good reasons for his conduct, if he wishes to avoid 
 giving offence. These reasons may arise from particular con- 
 junctures : but there are also ordinary reasons ever subsist- 
 ing, and such as relate to the constitution of a government 
 and the state of a nation. Republics would' often have very 
 good reasons of the latter kind, to excuse themselves from 
 continually suffering the residence of foreign ministers, who 
 corrupt the citizens, gain them over to their masters, to the 
 great detriment of the republic, and excite and foment par- 
 ties in the state, &c. And even though no other evil should 
 arise from their presence than that of inspiring a nation, ori- 
 ginally plain, frugal, and virtuous, with a taste for luxury, 
 the thirst of gain, and the manners of courts, that alone 
 would be more than sufficient to justify the conduct of wise 
 and provident rulers in dismissing them. The Polish govern- [ 457 J 
 ment is not fond of resident ministers ; and indeed their in- 
 trigues with the members of the diet have furnished but too 
 many reasons for keeping them at a distance. In the war of 
 1666, a nuncio publicly complained, in the open diet, of the 
 French ambassador's unnecessarily prolonging his stay in 
 Poland, and declared that he ought to be considered as a 
 spy. In 1668, other members of that body moved for a law 
 to regulate the length of time that an ambassador should be 
 allowed to remain in the kingdom.* 
 
 The greater the calamities of war are, the more it is in cum- 67. How 
 bent on nations to preserve means for putting an end to it. the minis - 
 Hence it becomes necessary, that, even in the midst of hosti- * r e s m f * e 
 lities, they be at liberty to send ministers to each other, for to be a^. 
 the purpose of making overtures of peace, or proposals tend-mittd. 
 ing to moderate the transports of hostile rage. It is true, 
 
 * Wickefort's Ambassador, b. L 3 1. 
 
 575
 
 457 OF THE RIGHT OF EMBASSY. 
 
 BOOK iv. indeed, that the minister of an enemy cannot come without 
 -^ -^ permission ; accordingly, a passport, or safe-conduct, is asked 
 for him, either through the intervention of some common 
 friend, or hy one of those messengers who are protected by 
 the laws of war, and of whom we shall speak in the sequel 
 I mean a trumpeter or drummer. It is true, also, that, for 
 substantial reasons, the safe-conduct may be refused, and ad- 
 mission denied to the minister. But this liberty, which is 
 authorized by the care that every nation is bound to bestow 
 on her own safety, is no bar to our laying it down as a gene- 
 ral maxim, that we are not to refuse admitting and hearing 
 an enemy's minister ; that is to say, that war alone, and of 
 itself, is not a sufficient reason for refusing to hear any pro- 
 posal coming from an enemy ; but that, to warrant such re- 
 fusal, there must exist some reason of a particular nature, 
 and which rests upon very good grounds, as, for instance, 
 when an artful and designing enemy has, by his own conduct, 
 given us just cause to apprehend that his only intention, in 
 sending his ministers and making proposals, is to disunite the 
 members of a confederacy, to lull them into security by hold- 
 ing out false appearances of peace, and then to overpower 
 them by surprise., 
 
 \ 68. Whe- Before we conclude this chapter, it will be proper to dis- 
 ther minis- cusg a celebrated question, which has been often debated. It 
 received ' 1S as ^ e( ^ whether foreign nations may receive the ambassa- 
 from or sent dors and other ministers of an usurper, and send their minis- 
 to an usurp- ters to him ? In this particular, foreign powers take for their 
 er - rule the circumstance of actual possession, if the interest of 
 
 their affairs so require : and, indeed, there cannot be a more 
 certain rule, or one that is more agreeable to the law of na- 
 tions and the independency of states. As foreigners have 
 no right to interfere in the domestic concerns of a nation, 
 they are not obliged to canvass and scrutinize her conduct in 
 the management of them, in order to determine how far it is 
 either just or unjust. They may, if they think proper, sup- 
 L *5o J p 0ge the r ight to be annexed to the possession. When a na- 
 tion has expelled her sovereign, other powers, who do not 
 choose to declare against her, and to risk the consequences 
 of her enmity or open hostility, consider her thenceforward 
 as a free and sovereign state, without taking on themselves to 
 determine whether she has acted justly in withdraAving from 
 her allegiance to the prince by whom she was governed. Car- 
 dinal Mazarin received Lockhart, whom Cromwell had sent as 
 ambassador from the republic of England, and refused to see 
 either King Charles the Second, or his ministers. If a people, 
 after having expelled their prince, submit to another if they 
 change the order of succession, and acknowledge a sovereign 
 to the prejudice of the natural and appointed heir foreign 
 powers may, in this instance also, consider what has been 
 done as lawful : it is no quarrel or business of theirs. At 
 
 576
 
 OF THE SEVERAL ORDERS OF PUBLIC MINISTERS. 458 
 
 the beginning of the last century, Charles, Duke of Suder- BOOK iv. 
 mania, having obtained the crown of Sweden, to the preju- CHAl> - T - . 
 dice of his nephew Sigismumd, king of Poland, was soon 
 acknowledged by most sovereigns. Villeroy, minister of the 
 French monarch, Henry the Fourth, in his despatches of the 
 8th of April, 1608, plainly said to the president, Jeannin, 
 " All these reasons and considerations shall not prevent the 
 king from treating with Charles, if he finds it to be his in- 
 terest, and that of his kingdom." This remark was sensible 
 and judicious. The king of France was neither the judge nor 
 the guardian of the Swedish nation, that he should, contrary 
 to the interests of his own kingdom, refuse to acknowledge 
 the king whom Sweden had chosen, under pretence that a 
 competitor had termed Charles an usurper. Had the charge 
 been even founded in justice, it was an affair which did not 
 fall under the cognizance of foreigners. 
 
 Therefore, when foreign powers have received the minis- 
 ters of an usurper, and sent theirs to him, the lawful prince, 
 on recovering the throne, cannot complain of these measures 
 as an injury, nor justly make them the ground of a war, pro- 
 vided those powers have not proceeded to greater lengths, 
 nor furnished any assistance against him. But to acknow- 
 ledge the dethroned prince or his heir, after the state has 
 solemnly acknowledged the person to whom the sceptre has 
 been transferred, is an injury done to the latter, and a pro- 
 fession of enmity to the nation that has chosen him. Such a 
 step, hazarded in favour of James the Second's son, was, by 
 William the Third and the British nation, alleged as one of 
 the principal reasons of the war which England soon after 
 declared against France. Notwithstanding all the caution,, 
 and all the protestations of Louis the Fourteenth, his acknow- 
 ledgment of young Stuart, as king of England, Scotland, and 
 Ireland, under the title of James the Third, was considered 
 by the English as an injury done both to the king and to the 
 nation. 
 
 CHAP. VI. E 459 J 
 
 OF THE SEVERAL ORDERS OF PUBLIC MINISTERS OF THE RT8-- CHAP - TI - 
 PRESENTATIVE CHARACTER AND OF THE HONOURS DUE TO 
 MINISTERS. 
 
 IN former days, people were scarcely acquainted with more ? 69. Origin 
 than one order of public ministers, iii Latin termed legati, of the seve- 
 which appellation has been rendered by that of " ambassa- 
 dors." But, when courts were become more proud, and, at 
 the same time, more punctilious in the article of ceremony, 
 and especially when they had introduced the idea of extend- 
 
 73 2 Y 577
 
 459 OF THE SEVERAL ORDERS 
 
 BOOK nr. ing the minister's representation even to that of his master's 
 CHAP, vi. dignity, jt wag thought expedient to employ commissioners 
 of less exalted rank on certain occasions, in order to avoid 
 trouble, expense, and disputes. Louis the Eleventh of France 
 was, perhaps, the first who set the example. Thus, several 
 orders of ministers being established, more or less dignity 
 was annexed to their character, and proportionate honours 
 were required for them. 
 
 70. Repre- Every minister, in some measure, represents his master, as 
 sentative every agent or delegate represents his constituent. But this 
 B ** t> representation relates to the affairs of his office : the minister 
 represents the subject in whom reside the rights which he is 
 to exercise, preserve, and assert the rights respecting which 
 he is to treat in his master's stead. Although such repre- 
 sentation is admitted in a general view, and so far as respects 
 the essence of affairs, it is with an abstraction of the dignity 
 of the constituent. In process of time, however, princes 
 would have ministers to represent them, not only in their 
 rights and in the transaction of their affairs, but also in their 
 dignity, their greatness, and their pre-eminence. It was, no 
 doubt, to those signal occasions of state, those ceremonies for 
 which ambassadors are sent, as, for instance, marriages, that 
 this custom owes its origin. But so exalted a degree of dig- 
 nity in the minister is attended with considerable inconve- 
 nience in conducting business, and, besides occasioning 
 trouble and embarrassment, is often productive of difficulties 
 and disputes. This circumstance has given birth to different 
 orders of public ministers, and various degrees of representa- 
 tion. Custom has established three principal degrees. What 
 is, by way of pre-eminence, called the representative character, 
 is the faculty possessed by the minister, of representing his 
 master even in his very person and dignity. 
 
 11. Am- The representative character, so termed by way of pre- 
 rmt* ' em i nence > or m contradistinction to other kinds of represen- 
 tation, constitutes the minister of the first rank the ambas- 
 sador. It places him above all other ministers who are not 
 invested with the same character, and precludes their enter- 
 ing into competition with the ambassador. At present there 
 are ambassadors ordinary and extraordinary : but this is no 
 more than an accidental distinction, merely relative to the 
 subject of their mission. Yet almost everywhere some dif- 
 ference is made in the treatment of these different ambas- 
 [ 460 J sadors. That, however, is purely matter of custom, 
 g 72. En- Envoys are not invested with the representative character, 
 voys. properly so called, or in the first degree. They are ministers 
 of the second rank, on whom their master was willing to con- 
 
 (192) An ambaMador may annul a the event of his nation rejecting a 
 
 treaty, see authorities collected in person sent by the friendly nation as 
 
 1 Chitty's Commercial Law, 46. la consul, he is to assign the reasons, 
 57S 

 
 OF PUBLIC MINISTERS. 460 
 
 fer a degree of dignity and respectability, which, without BOOK iv. 
 being on a level with the character of an ambassador, im- CHAP - Yr - 
 mediately follows it, and yields the pre-eminence to it alone. 
 There are also envoys ordinary and extraordinary ; and it 
 appears to be the intention of princes that the latter should 
 be held in greater consideration. This likewise depends on 
 custom. 
 
 The word resident formerly related only to the continu- \ 73. Resi- 
 ance of the minister's stay ; and it is frequent, in history, dents - 
 for ambassadors in ordinary to be designated by the simple 
 title of residents. But, since the practice of employing dif- 
 ferent orders of ministers has been generally established, the 
 name of residents has been confined to ministers of a third 
 order, to whose character general custom has annexed a lesser 
 degree of respectability. The resident does not represent the 
 prince's person in his dignity, but only in his affairs. His 
 representation is in reality of the same nature as that of the 
 envoy: wherefore we often term him, as well as the envoy, a 
 minister of the second order, thus, distinguishing only two 
 classes of public ministers, the former consisting of ambas- 
 sadors who are invested with the representative character in 
 pre-eminence, the latter comprising all other ministers who do 
 not possess that exalted character. This is the most neces- 
 sary distinction, and, indeed, the only essential one. 
 
 Lastly, a custom of still more recent origin has introduced g 74. Minis- 
 a new kind of ministers without any particular determination ters ' 
 of character. These are called simply ministers, to indicate 
 that they are invested with the general quality of a sove- 
 reign's mandatories, without any particular assignment of 
 rank and character. It was likewise the punctilio of cere- 
 mony which gave rise to this innovation. Use had esta- 
 
 and request the appointment of ano- tions. Id. 461-2 ; The Caroline, 6 Rob. 
 
 ther consul. Id. 55. In his absence a Rep. 461 ; The Madison, 1 Edw. R. 224. 
 
 consul of his nation may demand an As respects an ambassador or mi- Ambassa- 
 
 audience with the minister of the nister in Great Britain, this is de- dor's privi- 
 
 friendly state, (Id. 63,) although a clared and enforced by 7 Anne, c. 12 ; lege from 
 
 consul has not the same privileges as see the decisions thereon, Chitty's CoL arrest. 
 
 an ambassador in other respects, Id. Stat. 13 ; Novella v. Togwood, 1 Barn. 
 
 70. The children of an ambassador & Ores. 554, 2 Dowl. & Ryl. 833, S. C. ; 
 
 and of his attendants, though born in and 13 Price Rep. 805. And a ser- 
 
 a foreign state, are considered natural- vant of a foreign minister, though 
 
 born subjects. Id. 110, 112. An am- not lodging in his house, is protected 
 
 bassador from a foreign court, for- by that act In re Count Haslang, 
 
 merly, could not come into England Dick. 274. But a plaintiff xmcler such 
 
 without a license and safe-conduct, protection of a foreign ambassador 
 
 Id. 131. He is the proper person to has been compelled to give security 
 
 grant a passport. Id. 492. The am- for costs before he will be allowed to 
 
 bassador of an enemy at a neutral court proceed. Adderly v. Smith, Dick, 355. 
 
 may recover and insist on having re- But that act does not extend to consult, 
 
 stored despatches sent by a neutral who are, therefore, liable to arrest. 
 
 vessel, and captured by an enemy ; and Vivearu v. Belcher, 3 Maule & Selwyn, 
 
 he is peculiarly an object of the pro- 284. C. 
 
 tection and favour of the law of na- 
 
 579
 
 460 OF THE SEVERAL ORDERS 
 
 BOOK IT. Wished particular modes of treatment for the ambassador, the 
 CHAP. TI. m enyo^ an{ j t h e res ident. Disputes between ministers of the 
 several princes often arose on this head, and especially about 
 rank. In order to avoid all contest on certain occasions 
 when there might be room to apprehend it, the expedient was 
 adopted of sending ministers not invested with any one of the 
 three known characters. Hence, they are not subjected to 
 any settled ceremonial, and can pretend to no particular 
 treatment. The minister represents his master in a vague 
 and indeterminate manner, which cannot be equal to the first 
 degree ; consequently he makes no demur in yielding pre- 
 eminence to the ambassador. He is entitled to the general 
 [ 461 ] regard due to a confidential person intrusted by a sovereign 
 with the management of his affairs ; and he possesses all the 
 rights essential to the character of a public minister. This 
 indeterminate quality is such that the sovereign may confer it 
 on one of his servants whom he would not choose to invest 
 with the character of ambassador ; and, on the other hand, it 
 may be accepted by men of rank, who would be unwilling to 
 undertake the office of resident, and to acquiesce in the treat- 
 ment at present allotted to men in that station. There are 
 also ministers plenipotentiary, and of much greater distinction 
 than simple ministers. These also are without any particular 
 attribution of rank and character, but, by custom, are now 
 placed immediately after the ambassador, or on a level with 
 the envoy extraordinary. 
 
 g 75. Con- We have spoken of consuls in treating of commerce 
 (? ook IL 3 f) Formerly, agents were a kind of public mi- 
 Bisters : but in the present increase and profusion of titles, 
 sioners, Ac. this is given to persons simply appointed by princes to trans- 
 (193) act their private affairs, and who not unfrequently are sub- 
 
 jects of the country where they reside. They are not public 
 ministers, and consequently not under the protection of the 
 law of nations. But a more particular protection is due to 
 them than to other foreigners or citizens, and likewise some 
 attention in consideration of the prince whom they serve. If 
 that prince sends an agent with credentials and on public bu- 
 siness, the agent thenceforward becomes a public minister ; 
 his title making no difference in the case. The same remark 
 is also applicable to deputies, commissioners, and others in- 
 trusted with the management of public affairs. 
 
 g 76. Ore- Among the several characters established by custom, it 
 dentiais. rests with the sovereign to determine with what particular 
 one he chooses to invest his minister ; and he makes known 
 the minister's character in the credentials which he gives him 
 for the sovereign to whom he sends him. Credentials are the 
 instrument which authorizes and establishes the minister in 
 his character with the prince to whom they are addressed. 
 
 (193) Ante, 147 and 459. 
 530
 
 OF PUBLIC MINISTERS. 461 
 
 If that prince receives the minister, he can receive him only BOOK iv. 
 in the quality attributed to him in his credentials. They are, CHAP< VI ' 
 as it were, his general letter of attorney, his mandate patent, 
 mandatum 
 
 The instructions given to the minister contain his master's g 77. i n - 
 secret mandate, the orders to which the minister must carefully structions. 
 conform, and which limit his powers. Here we might apply 
 all the rules of the law of nature respecting procurations and 
 mandates, whether open or secret. But exclusive of their 
 being more particularly applicable to the subject of treaties, 
 we may with the less impropriety dispense with such details 
 in this work, as the custom has wisely been established, that 
 no engagements into which a minister may enter, shall 
 have any validity between sovereigns, unless ratified by his 
 principal. 
 
 We have seen above that every sovereign, every commu- 1 78. Right 
 nity, and even every individual, who has a right to treat with of sendin s 
 
 foreign powers, has also that of sending ambassadors. 
 
 the preceding chapter.) The question admits of no difficulty, 
 
 so far as respects simple ministers or mandatories, considered 
 
 in general as persons intrusted with the affairs, and vested [ 462 ] 
 
 with the powers, of those who have a right to treat. Further, 
 
 the ministers of every sovereign are, without hesitation, 
 
 allowed to enjoy all the rights and prerogatives belonging to 
 
 ministers of the second order. Powerful monarchs, indeed, 
 
 deny to some petty states the right of sending ambassadors : 
 
 but let us see with what reason. According to the generally 
 
 established custom, the ambassador is a public minister, re- 
 
 presenting the person and dignity of a sovereign; and, as 
 
 this representative character procures him particular honours, 
 
 great princes are therefore unwilling to admit the ambas- 
 
 sador of an inconsiderable state, from a repugnance to pay- 
 
 ing him honours of so distinguished a kind. But it is mani- 
 
 fest that every sovereign has an equal right of causing himself 
 
 to be represented in the first as well as in the second or the 
 
 third degree : and the sovereign dignity is entitled to dis- 
 
 tinguished respect in the great society of nations. We have 
 
 shown (Book II. Ch. III.) that the dignity of independent na- 
 
 tions is essentially the same : that a sovereign prince, how- 
 
 ever low he may rank in the scale of power, is as completely 
 
 sovereign and independent as the greatest monarch, in the 
 
 same manner as a dwarf is a man equally with a giant: 
 
 although, indeed, the political giant makes a more conspicu- 
 
 ous figure in the general society than the dwarf, and has, on 
 
 that account, a greater portion of respect and more signal 
 
 honours paid to him. It is evident, then, that every prince, 
 
 every state, truly possessed of sovereignty, has a right to 
 
 send ambassadors, and that to contest their right in this in- 
 
 stance is doing them a very great injury ; it is, in fact, con- 
 
 testing their sovereign dignity. And if they have that right, 
 
 2r2 581
 
 462 OF THE SEVERAL ORDERS 
 
 BOOK iv. their ambassadors cannot be refused those regards and ho- 
 CHAP. vi. nourg w hi c h custom particularly assigns to the representative 
 of a sovereign. The king of France admits no ambassadors 
 from the princes of Germany, as refusing to their ministers 
 the honours annexed to the first degree of representation ; 
 yet he receives ambassadors from the princes of Italy. The 
 reason alleged for this conduct>is that he considers the latter 
 to be more perfectly sovereign princes than the former, be- 
 cause, though equally vassals of the emperor' and the empire, 
 they are not equally dependent on the imperial authority. 
 The emperors, nevertheless, claim the same rights over the 
 princes of Italy, as over those of Germany. But France, 
 seeing that the former do not actually constitute a part of 
 the Germanic body, nor assist at the diets, countenances 
 their absolute independence, in order as much as possible to 
 detach them from the empire. 
 
 I shall not here enter into a detail of the honours due and 
 actually paid to ambassadors : these are matters which alto- 
 gether depend on institution and custom : I shall only 
 observe, in general, that they are entitled to those civilities 
 and distinctions which usage, and the prevailing manners of 
 the time, have pointed out as proper expressions of the re- 
 spect due to the representative of a sovereign. And it must 
 be observed here, with regard to things, of institution and 
 [ 463 ] custom, that, when a practice is so established, as to impart, 
 according to the usages and manners of the age, a real value 
 and a settled signification to things which are in their own 
 nature indifferent, the natural and necessary laAV of nations 
 requires that we should pay deference to such institution, 
 and act, with respect to such things, in the same manner as 
 if they really possessed all that value which the opinion of 
 mankind has annexed to them. For instance, according to 
 the general usage of all Europe, it is the peculiar prerogative 
 of an ambassador to wear his hat in presence of the prince to 
 whom he is sent. This right expresses that he is acknow- 
 ledged as the representative of a sovereign : to refuse it, 
 therefore, to the ambassador of a state which is truly inde- 
 pendent, would be doing an injury to that state, and, in some 
 measure, degrading it. The Switzers, who formerly were 
 much deeper adepts in the art of war than in the etiquette of 
 courts, and far from being punctilious on the score of mere 
 ceremony, have, on some occasions, submitted to be treated 
 in a manner unbecoming the dignity of their nation. In 
 1663, their ambassadors suffered the king of France, and the 
 nobles of his court, to refuse them those honours which cus- 
 tom has rendered essential to the ambassadors of sovereigns, 
 and particularly that of being covered before the king at their 
 audience.* Some of their number, who knew better what 
 
 * In Wicquefort, may be seen a particular account of tho whole trans- 
 582
 
 OF PUBLIC MINISTERS. 463 
 
 they owed to the glory of their republic, strongly insisted on BOOK IT. 
 that essential and distinctive honour ; but the opinion of the CHAP ' YI ' 
 majority prevailed, and at length they all yielded, on being 
 assured that the ambassadors of their nation had not worn 
 their hats in presence of Henry the Fourth. Allowing the 
 fact to have been true, the argument was not unanswerable. 
 The Switzers might have replied, that in Henry's time their 
 nation was not yet solemnly acknowledged free and inde- 
 pendent of the empire, as it had lately been by the treaty of 
 Westphalia in 1648. They might have said, that, although 
 their predecessors had not been duly attentive to support the 
 dignity of their sovereigns, that gross error could not impose 
 on their successors any obligation to commit a similar one. 
 At present, as the nation is more enlightened, and more 
 attentive to points of that nature, she will not fail to support 
 her dignity in a more becoming manner. Whatever extra- 
 ordinary honours may, in other respects, be paid to her 
 ambassadors, she will not, in future, suffer herself to be so far 
 blinded by those empty marks of distinction, as to overlook 
 that peculiar prerogative which custom has rendered essential. 
 When Louis the Fifteenth visited Alsace, in 1744, the Helvetic 
 body declined sending ambassadors to compliment him accord- 
 ing to custom, until informed whether they would be allowed 
 to wear their hats : and on the refusal of that just demand, [ 464 ] 
 none were sent. Switzerland may reasonably hope that his 
 most Christian majesty will no longer insist on a claim which 
 does not enhance the lustre of his crown, and can only serve 
 to degrade an ancient and faithful ally. 
 
 CHAP. VII. 
 
 OF THE BIGHTS, PRIVILEGES, AND IMMUNITIES OF AMBAS- CHAP. TII. 
 SADORS AND OTHER PUBLIC MINISTERS. (194) 
 
 THE respect which is due to sovereigns should redound to ? 80 - Re - 
 their representatives, and especially their ambassadors, as spec * due ! to 
 representing their master's person in the first degree. Who-^ 1 ^ 1111 " 
 ever offends and insults a public minister commits a crime the (195) ' . 
 more deserving of severe punishment, as he might thereby 
 involve his country and his sovereign in very serious diffi- 
 culties and trouble. It is just that he should be punished for 
 his fault, and that the state should, at the expense of the de- 
 action. That writer is justifiable in nation by coarsely asserting that 
 expressing a degree of indignation "they prefer money to honour." 
 against the Swiss ambassadors ; but he Ambassador, book i. g 19. See also 
 ought not to have insulted the whole 18. 
 
 (194) See Wicquefort's Ambassadors, (195) Ante, p. 459, n. 
 per tot. C. 
 
 583
 
 464 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. linquent, give full satisfaction to the sovereign who has been 
 CHAP, vn. O ff en( j ec i j n the person of his minister. If the foreign minis- 
 ter is himself the aggressor, and offends a citizen, the latter 
 may oppose him without ^departing from the respect due to 
 the character which the offender bears, and give him a lesson 
 which shall both efface the stain of the outrage, and make the 
 author of it blush for his misqonduct. The person offended 
 may further prefer a complaint to his own sovereign, who will 
 demand for him an adequate satisfaction for the minister's 
 master. The great concerns of the state forbid a citizen, on 
 such occasions, to entertain those thoughts of revenge which 
 the point of honour might suggest, although they should in 
 other respects be deemed allowable. Even according to the 
 maxims of the world, a gentleman is not disgraced by an 
 affront for which it is not in his own power to procure satis- 
 faction. 
 
 g 81. Their The necessity and right of embassies being established 
 persons sa- (g e e Chap. V. of this Book), the perfect security and inviola- 
 cred and foUtj O f ambassadors, and other ministers, is a certain con- 
 
 inviolable. ,, . ,, .,, , . , . j * 
 
 (196) sequence of it : for, if their persons be not protected from 
 
 violence of every kind, the right of embassy becomes preca- 
 rious, and the success very uncertain. A right to the end 
 inseparably involves a right to the necessary means. Embas- 
 sies, then, being of such great importance in the universal 
 society of nations, and so necessary to their common well- 
 being, the persons of ministers charged with those embassies 
 are to be held sacred and inviolable among all nations. (See 
 Book II. 218.) Whoever offers violence to an ambassador, 
 or to any other public minister, not only injures the sovereign 
 whom that minister represents, but also attacks the common 
 
 [ 465 ] safety and well-being of nations: he becomes guilty of an 
 atrocious crime against mankind in general. 
 
 (196) Ante, p. 459, n. C. the sultan for this barbarous massacre; 
 
 * An enormous infraction of the and, finding him backward to give it, 
 law of nations caused the ruin of the he took up arms. The conquest of 
 powerful empire of Khovarezm, or the whole empire of Khovarezm soon 
 Kakesm, and opened a door to the followed; and Mohammed himself, re- 
 Tartars for the subjugation of almost duced to the condition of a wretched 
 all Asia. The famous Gengis-khan, fugitive, died of a broken heart in a 
 wishing to establish a commercial in- desert island of the Caspian Sea. 
 tercourse hetween his states and those Canson, the last sultan of the Mam- 
 of Persia, and the other provinces sub- melucs, having put to death the am- 
 ject to Mohammed Cotheddin, sultan bassadors of the Turkish emperor, 
 of Khovarezm, sent to that prince an Selim the First, the injured monarch 
 ambassador, accompanied by a caravan took a signal vengeance for the atro- 
 of merchants. On the arrival of that cious deed. He conquered all the do- 
 caravan at Otraw, the governor caused minions of Canson, and, having de- 
 them to be arrested, together with the feated and captured that prince near 
 ambassador, and wrote word to the Cairo, he caused him to be hanged 
 Sultan that they were a company of at one of the gates of the city. Ma- 
 spies. Mohammed thereupon ordered rigny, History of the Arabs, vol. ii. p. 
 him to have the prisoners put to death. 105, 427. 
 Gengis-khan demanded satisfaction of
 
 IMMUNITIES OF AMBASSADORS, ETC. 465 
 
 This safety is particularly due to the minister, from the BOOK IT. 
 sovereign to whom he is sent. To admit a minister, to an- CHAP - * TU 
 knowledge him in such character, is engaging to grant him I 82 - Parti- 
 the most particular protection, and that he shall enjoy all cula . r pr ' 
 
 11 f T j j a.1- j. J.-L J . J . tection due 
 
 possible safety. It is true, indeed, that the sovereign is to them> 
 bound to protect every person within his dominions, whether (197) 
 native or foreigner, and to shelter him from violence : but 
 this attention is in a higher degree due to a foreign minister. 
 An act of violence done to a private person is an ordinary 
 transgression, which, according to circumstances, the prince 
 may pardon : but if done to a public minister, it is a crime of 
 state, an offence against the law of nations ; and the power 
 of pardoning, in such case, does not rest with the prince in 
 whose dominions the crime has been committed, but with him 
 who has been offended in the person of his representative. 
 However, if the minister has been insulted by persons who 
 were ignorant of his character, the offence is wholly uncon- 
 nected with the law of nations, and falls within the class of 
 ordinary transgressions. A company of young rakes, in a 
 town of Switzerland, having, in the night-time, insulted the 
 British minister's house, without knowing who lived in it, the 
 magistracy sent a message to the minister to know what satis- 
 faction he required. He prudently answered, that it was the 
 magistrates' concern to provide for the public safety by such 
 means as they thought best ; but that, as to his own part, he 
 required nothing, not thinking himself affronted by persons 
 who could have had no design against him, as not knowing 
 his house. Another particular circumstance, in the protec- 
 tion due to foreign ministers, is this : according to the de- 
 structive maxims introduced by a false point of honour, a sove- 
 reign is under a necessity of showing indulgence to a person 
 wearing a sword, who instantly revenges an affront done to 
 him by a private individual : but violent proceedings against 
 a public minister can never be allowed or excused, unless [ 466 ] 
 where the latter has himself been the aggressor, and, by using 
 violence in the first instance, has reduced his opponent to the 
 necessity of self-defence. 
 
 Though the minister's character is not displayed in its full 83. when 
 extent, and does not thus insure him the enjoyment of all his it coin- 
 rights, till he is acknowledged and admitted by the sovereign, mences - 
 to whom he delivers his credentials, yet, on his entering the 
 country to which he is sent, and making himself known, he is 
 under the protection of the law of nations; otherwise, it would 
 not be safe for him to come. Until he has had his audience 
 of the prince, he is, on his own word, to be considered as a 
 minister ; and besides, exclusive of the notice of his mission, 
 
 (197) See also the case of the arrest 12. See recital in act, and 1 Bla. Com. 
 of the Russian ambassador, which oc- 250, and ante, 459, note. C. 
 casioned the passing of the 7 Anne, c. 
 
 74 585
 
 466 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. usually given by letter, the minister has, in case of doubt, his 
 CHAP, vii. p a ggp 0r t s to produce, which will sufficiently certify his cha- 
 racter. 
 
 % 84. What These passports sometimes become necessary to him in the 
 is due to countries through which he passes on his way to the place of 
 countries n * s destination ; and, in case of need, he shows them, in order 
 through to obtain the privileges to which he is entitled. It is true, 
 which they indeed, that the prince alone to whom the minister is sent, is 
 paas. under any obligation, or particular engagement to insure him 
 
 the enjoyment of all the rights annexed to his character. Yet 
 the others through whose dominions he passes are not to deny 
 him those regards to which the minister of a sovereign is en- 
 titled, and which nations reciprocally owe to each other. In 
 particular they are bound to afford him perfect security. To 
 insult him would be injuring his master, and the whole nation 
 to which he belongs : to arrest him, and offer him violence, 
 would be infringing the right of embassy, which belongs to 
 all sovereigns ( 57 63). The French monarch, Francis 
 the First, had therefore very good reason to complain of the 
 murder of his ambassadors, Rincon and Fregose, as an atro- 
 cious violation of public faith and the law of nations. Those 
 two ministers, the one destined for Constantinople, the other 
 for Venice, having embarked on the Po, were stopped and 
 murdered ; and, according to all appearances, the deed had 
 been perpetrated by order of the governor of Milan.* The 
 emperor Charles the Fifth, having taken no pains to discover 
 the persons concerned in the murder, authorized a belief that 
 he had himself ordered it, or at least that he tacitly approved 
 of the act after its commission. And, as he did not give any 
 suitable satisfaction for it, Francis had a very just cause for 
 declaring war against him, and even calling for the assistance 
 of all other nations : for an affair of this nature is not a pri- 
 vate dispute, a doubtful question, in which each party pre- 
 tends to have justice on his side : it is a quarrel which in- 
 volves the concern of all nations, since they are all equally 
 interested in maintaining the sacred inviolability of that 
 right, and of those means which enable them to hold com- 
 [ 467 ] munication with each other, and to treat of their affairs. If 
 an innocent passage, and even perfect security are due to a 
 private individual, much more are they due to the minister 
 of a sovereign, who is going to execute his master's orders, 
 and who travels on the affairs of a nation. I say, " an in- 
 nocent passage ;" for the minister's journey is justly sus- 
 pected, if a sovereign has reason to apprehend that he will 
 make an improper use of the liberty granted him of entering 
 his territories, by plotting against his interests while in the 
 country, or that he is going to convey intelligence to his ene- 
 mies, or to stir up others against him. We have already 
 
 * Memoires de Martin du Bellay, liv. ix. 
 586
 
 IMMUNITIES OF AMBASSADORS, ETC. 467 
 
 said ( 64) that he may in such case refuse him a passage : BOOK iv. 
 but he is not to maltreat him, nor suffer any violence to be , CHAP - Tu -. 
 offered to his person. If he has not reason sufficient for de- 
 nying him a passage, he may take precautions against the 
 abuse which the minister might make of it. These maxims 
 the Spaniards found established in Mexico and the neigh- 
 bouring provinces. In those countries, ambassadors were 
 respected throughout their whole journey : but they could 
 not deviate from the high road without forfeiting their 
 rights :* a prudent and judicious reservation, introduced 
 as a guard against the admission of spies under the name 
 of ambassadors. Thus, while the negotiations for peace 
 were carried on at the famous congress of Westphalia, amid 
 the dangers of war and the din of arms, the several couriers 
 sent or received by the plenipotentiaries had each his particu- 
 lar route designated; and, out of the prescribed tract, his 
 passport could afford him no protection, f 
 
 What we have here observed relates to nations that are | 85. Am- 
 at peace with each other. On the breaking out of a war, we bassadors 
 cease to be under any obligation of leaving the enemy in the going ^ an 
 free enjoyment of his rights: on the contrary, we are justi- Country. 
 fiable in depriving him of them, for the purpose of weakening 
 him, and reducing him to accept of equitable conditions. 
 His people may also be attacked and seized wherever we 
 have a right to commit acts of hostility. Not only, there- 
 fore, may we justly refuse a passage to the ministers whom 
 our enemy sends to other sovereigns ; we may even arrest 
 them if they attempt to pass privately, and without permis- 
 sion, through places belonging to our jurisdiction. Of such 
 proceeding the last war furnishes a signal instance. A 
 French ambassador, on his route to Berlin, touched, through 
 the imprudence of his guides, at a village within the electo- 
 rate of Hanover, whose sovereign, the king of England, was 
 at war with France. The minister was there arrested and 
 afterwards sent over to England. As his Britannic ma- 
 jesty had in that instance only exerted the rights of war, 
 neither the court of France nor that of Prussia complained 
 of his conduct. 
 
 The reasons which render embassies necessary, and am- 86 - 
 bassadors sacred and inviolable, are not less cogent in time bas 
 
 ,, , f j s\ i t twe 
 
 oi Avar, than in prolound peace. On the contrary, the ne- miea- 
 
 cessity and indispensable duty of preserving some resource 
 
 by which the minds of the belligerent parties may be brought [ 468 ] 
 
 to a mutual understanding, and peace be restored, is a fresh 
 
 reason why the persons of ministers, as instruments in the 
 
 preliminary conferences and final reconciliation, should be 
 
 still more sacred and inviolable. Nomen legati, says Cicero, 
 
 * Solis's history of the Conquest of Mexico. 17. 
 | Wicquefort's Ambassador, book i. g 1. 
 
 537 
 
 bassies be ~ 
 
 en ene-
 
 468 
 
 BOOK IV. 
 CHAP. VII. 
 
 \ 87. He- 
 ralds, trum- 
 peters, and 
 drummers. 
 
 88. Mi- 
 nisters, 
 trumpeters, 
 Ac., to b 
 respected, 
 even in a 
 civil war. 
 
 [469] 
 
 OF RIGHTS, PRIVILEGES, AND 
 
 ejusmodi esse debet, quod, non modo, inter sociorum jura, sed 
 etiam inter hostium tela, incolume versetur.* Accordingly, 
 one of the most sacred laws of war is that which insures per- 
 fect security to persons who bring messages or proposals 
 from the enemy. It is true, indeed, that the ambassador of 
 an enemy must not approach without permission : and as 
 there does not always exist a convenient opportunity of ob- 
 taining such permission through the medium of neutral per- 
 sons, the defect has been supplied by the establishment of 
 certain privileged messengers for carrying proposals from 
 enemy to enemy, in perfect safety. 
 
 The privileged messengers I allude to are heralds, trum- 
 peters, and drummers, who, from the moment they make 
 themselves known, and as long as they confine themselves 
 within the terms of their commission, are, by the laws of war 
 and those of nations, considered as sacred and inviolable. 
 This regulation is absolutely necessary ; for, exclusive of the 
 duty incumbent on us to reserve the means of restoring peace 
 (as above mentioned), there occur, even during the course of 
 the war, a thousand occasions, when the common safety and 
 advantage of both parties require that they should be able 
 to send messages and proposals to each other. The insti- 
 tution of heralds succeeded that of the Roman feciales : at 
 present, however, they are seldom employed : drummers or 
 trumpeters are sent, and after them, according to the exi- 
 gence of the occasion, ministers, or officers furnished with 
 powers. Those drummers and trumpeters are held sacred 
 and inviolable ; but they are to make themselves known 
 by the marks peculiar to them. (198) Maurice, prince of 
 Orange, highly resented the conduct of the garrison of 
 Ysendick, who had fired at his trumpeter :f on which occa- 
 sion the prince observed that no punishment can be too 
 severe for those who violate the law of nations. Other in- 
 stances may be seen in Wicquefort, and particularly the repa- 
 ration which the duke of Savoy, as general of Charles the 
 Fifth's army, caused to be made to a French trumpeter, who 
 had been dismounted and despoiled by some German 
 soldiers, f 
 
 In the wars of the Netherlands the duke of Alva hanged 
 up a trumpeter belonging to the prince of Orange, saying 
 that he was not obliged to allow safety to a trumpeter sent 
 him by the chief of the rebels, f On this, as on many other 
 occasions, that sanguinary general was undoubtedly guilty 
 of a flagrant violation of the laws of war, which, as we have 
 proved above (Book III. Chap. XVIII.), ought to be ob- 
 served even in civil wars : for, unless both parties can with 
 perfect safety interchange messages, and reciprocally send 
 
 * In Verrero, orat. L ( 198) But see Msop'a Fables. C. 
 
 | Wicquefort, book L 3.
 
 . IMMUNITIES OF AMBASSADORS, ETC. 469 
 
 confidential persons to each other, how can they, on those BOOK IT. 
 unfortunate occasions, ever come to talk of peace ? What CHAP - Y "-, 
 channel remains open for negotiating a salutary accommo- 
 dation ? The same duke of Alva, in the war which the 
 Spaniards afterwards made on the Portuguese, whom they 
 also termed rebels, caused the governor of Cascais to be 
 hanged for having given orders to fire on a trumpeter sent to 
 demand a surrender of the town.* In a civil war, or when 
 a prince takes up arms for the purpose of subduing a body 
 of people who think themselves absolved from their allegiance 
 to him, an attempt to compel the enemies to respect the laws 
 of war, while he himself does not observe them on his own 
 part, is in fact equal to a determined resolution of carrying 
 those wars to the extreme of cruelty, and converting them 
 into a scene of inordinate and endless murder, by the long 
 series of mutual retaliations which will naturally ensue. 
 
 But, as a prince, when influenced by substantial reasons, 89. Some- 
 may refuse to admit and listen to ambassadors, in like man- times they 
 ner the general of an army, or any other commander, is not aay d be d ^- t 
 always obliged to permit the approach of a trumpeter or t * e */w9) 
 drummer, and to give him a hearing. If, for instance, the 
 governor of a besieged town is apprehensive that a summons 
 to surrender may intimidate the garrison, and excite prema- 
 ture ideas of capitulation, he undoubtedly may, on seeing 
 the trumpeter advance, send him orders to retire, informing 
 him that if he comes a second time on the same errand and 
 without permission, he shall be fired upon. This conduct is 
 no violation of the laws of war : but such a mode of proceed- 
 ing ought not to be adopted without very cogent reasons, 
 because, by irritating the besiegers, it exposes the garrison 
 to be treated by them with the extreme of rigour, untem- 
 pered with mercy or moderation. To refuse to hear a trum- 
 peter's message without alleging a substantial reason for 
 the refusal, is equivalent to a declaration that the party is 
 determined to presevere in irreconcilable hostility. 
 
 Whether we admit or refuse to hear a herald or a trum- ? 90. Every 
 peter, we ought carefully to avoid every thing which might thin s which 
 wear the appearance of an insult offered to him. Not only p^rlnc^ o~f 
 does the law of nations claim that respect, but prudence i nsu it to 
 moreover recommends such caution and delicacy. In 1744, them must 
 the Bailly de Givry sent a trumpeter, with an officer, to sum- be avoided, 
 mon the redoubt of Pierrelonge in Piedmont. The Savoyard [ 470 ] 
 officer who commanded in the redoubt, a brave man, but of 
 a blunt and fiery disposition, feeling his indignation roused 
 by a summons to surrender a post which he deemed tenable 
 and secure, returned an insulting answer to the French gene- 
 ral. The officer to whom the answer was given, judiciously 
 
 * Wicquefort, book i. 21 b.; 4 Inst 155; 2 Inst 57; 1 Chit- 
 
 (199) See also Calvin's case, 7 Coke, ty's Com. L. 131. C. 
 
 2Z 589
 
 470 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. took advantage of the circumstance, and delivered it to the 
 CHAP - Yir - Bailly de Givry in the hearing of the French troops. It set 
 them in a flame ; and their native valour being stimulated 
 by the eager desire of avenging an affront, their impetuosity 
 was irresistible : though the attack was attended with con- 
 siderable carnage, the losses they sustained only added fresh 
 fuel to their courage, till at length they carried the redoubt : 
 and thus the imprudent commandant was accessary to his own 
 death, the slaughter of his men, and the loss of his post. 
 91. By and The prince, the general of the army, and every corn- 
 to whom mander-in-chief within his department, have alone the right 
 ^ sending a trumpeter or drummer ; and, on the other 
 hand, it is only to the commander-in-chief that they can send 
 such messengers. Should a general, besieging a town, at- 
 tempt to send a trumpeter to any subaltern, to the magis- 
 tracy, or the townsmen, the governor might justly treat that 
 trumpeter as a spy. The French monarch, Francis the 
 First, while engaged in war with Charles the Fifth, sent a 
 trumpeter to the diet of the empire, then assembled at Spires. 
 The trumpeter was seized by order of the emperor, who 
 threatened to hang him, because he was not sent to him.* 
 But he did not dare to put his threat in execution; for, 
 loudly as he complained on the subject, he was nevertheless 
 convinced, in his own mind, that the diet had a right, even 
 without his consent, to listen to the proposals brought by a 
 trumpeter. On the other hand, a drummer or trumpeter 
 from a subaltern is seldom received, unless for some particu- 
 lar object depending on the present authority of that subal- 
 tern acting in his function. At the siege of Rynberg in 
 1598, a colonel of a Spanish regiment having taken upon 
 him to summon the town, the governor sent the drummer 
 orders to withdraw, informing him at the same time, that, if 
 any other drummer or trumpeter had the audacity to come 
 on the same errand from a subaltern, he would cause the 
 messenger to be hanged.f 
 
 92. inde- The inviolability of a public minister, or the protection to 
 pendence of which he has a more sacred and particular claim than any 
 foreign mi- o j ner person, whether native or foreigner, is not the only 
 
 nisters. . ., r , ' . . . . & . ' . ,, J 
 
 (200) privilege he enjoys : the universal practice of nations allows 
 him, moreover, an entire independence on the jurisdiction 
 and authority of the state in which he resides. Some au- 
 thors;}; maintain that this independence is merely a matter 
 of institution between different states, and will have it refer- 
 red to the arbitrary law of nations, which owes its origin to 
 manners, customs, or particular conventions : in a word, they 
 deny it to be grounded on the natural law of nations. It is 
 true, indeed, that the law of nature gives men a right to 
 
 * Wiequefort, ubi supra. f Idem, ibid. 
 
 (200) See ante, pp. 459, 464. j See Wolf. Jus Gent, 1059. 
 
 590
 
 IMMUNITIES OF AMBASSADOKS, ETC. 470 
 
 punish those who injure them : consequently, it empowers BOOK iv. 
 sovereigns to punish any foreigner who disturbs the public CHAP ' Y "' 
 tranquillity, who offends them, or maltreats their subjects : 
 it authorizes them to compel such foreigner to conform to 
 the laws, and to behave properly towards the citizens. But 
 it is no less true, that the natural law at the same time im- [ 471 ] 
 poses on all sovereigns the obligation of consenting to those 
 things, without which it would be impossible for nations to 
 cultivate the society that nature has established among them, 
 to keep up a mutual correspondence, to treat of their aifairs, 
 or to adjust their differences. Now, ambassadors, and other 
 public ministers, are necessary instruments for the main- 
 tenance of that general society, of that mutual correspond- 
 ence between nations. But their ministry cannot effect the 
 intended purpose, unless it be invested with all the preroga- 
 tives which are capable of insuring its legitimate success, and 
 of enabling the minister freely and faithfully to discharge 
 his duty in perfect security. The law of nations, therefore, 
 while it obliges us to grant admission to foreign ministers, 
 does also evidently oblige us to receive those ministers in 
 full possession of all the rights which necessarily attach to 
 their character all the privileges requisite for the due per- 
 formance of their functions. It is easy to conceive that in- 
 dependence must be one of those privileges; since, without 
 it, that security which is so necessary to a public minister, 
 would be enjoyed on a very precarious footing. He might 
 be molested, persecuted, maltreated, under a thousand pre- 
 tences. A minister is often charged with commissions that 
 are disagreeable to the prince to whom he is sent. If that 
 prince has any power over him, and especially a sovereign 
 authority, how is it to be expected that the minister can exe- 
 cute his master's orders with due fidelity, firmness, and free- 
 dom of mind ? It is a matter of no small importance that 
 he have no snares to apprehend that he be not liable to be 
 diverted from his functions by any chicanery that he have 
 nothing to hope, nothing to fear, from the sovereign to whom 
 he is sent. In order, therefore, to the success of his minis- 
 try, he must be independent of the sovereign authority and 
 of the jurisdiction of the country, both in civil and criminal 
 matters. To this may be added, that the nobility and other 
 persons of eminence would be averse to undertaking an em- 
 bassy, if such commission were to subject them to a foreign 
 authority not unfrequently in countries where they have 
 little friendship to expect for their own nation, and where 
 they must support disagreeable claims, and enter into dis- 
 cussions naturally productive of acrimony. In a word, if an 
 ambassador may be indicted for ordinary offences, be cri- 
 minally prosecuted, taken into custody, punished if he may 
 be sued in civil cases the consequence will often be, that he 
 will neither possess the power, the leisure, nor the freedom 
 
 591
 
 471 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. of mind which his master's affairs require. And how shall 
 CHAP, vii. ne jj e jjj^g to g U pp 0r t; the dignity of representation in such a 
 state of subjection ? On the whole, therefore, it is impossible 
 to conceive that the prince who sends an ambassador, or any 
 other minister, can have any intention of subjecting him to 
 the authority of a foreign power : and this consideration fur- 
 nishes an additional argument which completely establishes 
 [ 472 ] the independency of a public minister. If it cannot be rea- 
 sonably presumed that his sovereign means to subject him to 
 the authority of the prince to whom he is sent, the latter, in 
 receiving the minister, consents to admit him on the footing 
 of independency : and thus there exists between the two 
 princes a tacit convention, which gives a new force to the 
 natural obligation. 
 
 The established practice is perfectly conformable to the 
 principles here laid down. All sovereigns claim a perfect in- 
 dependency for their ambassadors and ministers. If it be 
 true that there was a king of Spain, who from a desire of 
 arrogating to himself a jurisdiction over the foreign ministers 
 resident at his court, wrote to all the Christian princes, in- 
 forming them that if his ambassadors should commit any 
 crime in the places of their respective residence, it Avas his 
 pleasure that they should forfeit all their privileges, and be 
 tried according to the laws of the country,* one solitary in- 
 stance is of no weight in an affair of this nature ; nor have 
 his successors on the Spanish throne adopted a similar mode 
 of thinking. 
 
 \ 93. How This independency of the foreign minister is not to be 
 the foreign converted into licentiousness : it does not excuse him from 
 toTehave 8 conforming to the customs and laws of the country in all his 
 external actions, so far as they are unconnected with the 
 object of his mission and character : he is independent ; 
 but he has not a right to do whatever he pleases. Thus, 
 for instance, if there exist a general prohibition against pass- 
 ing in a carriage near a powder-magazine, or over a bridge 
 against walking round, and examining the fortifications of a 
 town, &c. the ambassador is bound to respect such prohibi- 
 tions, f Should he forget his duty should he grow insolent, 
 
 * The fact is advanced by Antony respective claims to precedency, mado 
 
 de Vera, in his "Idea of a Perfect a general request to all the foreign 
 
 Ambassador :" but Wicquefort sus- ministers not to send their carriages 
 
 pects the authenticity of the anecdote, to attend the public entry of the Ve- 
 
 not having, as he says, met with it netian ambassador. The count d'Es- 
 
 in any other writer. Ambassad. book i. trades, at that time minister from tho 
 
 29. court of France, having complied with 
 
 f The king of England having re- his majesty's desire, Louis XIV. tes- 
 
 ceived information that the French tified his dissatisfaction at the dcfe- 
 
 and Spanish ambassadors had seve- rence paid by the count to the British 
 
 rally collected considerable numbers monarch's message, "which was no 
 
 of armed men, for the purpose of sup- more than a simple request not to 
 
 porting, on a solemn occasion, their send carriages; whereas, even if he 
 592
 
 IMMUNITIES OF AMBASSADOKS, ETC. 472 
 
 and be guilty of irregularities and crimes there are, accord- BOOK rr. 
 ing to the nature and importance of his offences, various CHAP - YII -_ 
 modes of repressing him : and these we shall speak of, after 
 \ve have said a few words concerning the line of conduct to 
 be pursued by a public minister in the place of his residence. 
 He must not avail himself of his independency for the pur- [ 473 ] 
 pose of violating the laws and customs; he should rather 
 punctually conform to them, as far as they may concern him, 
 although the magistrate has no compulsive power over him ; 
 and he is especially bound to a religious observance of the 
 rules of justice towards all who have any dealings with him. 
 As to what concerns the prince to whom he is sent, the am- 
 bassador should remember that his ministry is a ministry of 
 peace, and that it is on that footing only he is received. 
 This reason forbids his engaging in any evil machinations : 
 let him serve his master without injuring the prince who re- 
 ceives him. It is a base treachery to take advantage of the 
 inviolability of the ambassadorial character, for the purpose 
 of plotting in security the ruin of those who respect that 
 character of laying snares for them of clandestinely in- 
 juring them of embroiling and ruining their affairs. What 
 would be infamous and abominable in a private guest, shall 
 that be allowable and becoming in the representative of a 
 sovereign ? 
 
 Here arises an interesting question. It is but too common 
 for ambassadors to tamper with the fidelity of the ministers 
 of the court to which they are sent, and of the secretaries 
 and other persons employed in the public offices. What 
 ideas are we to entertain of this practice? To corrupt a 
 person to seduce him to engage him by the powerful al- 
 lurement of gold to betray his prince and violate his duty, 
 is, according to all the established principles of morality, 
 undoubtedly a wicked action. How comes it then that so 
 little scruple is made of it in public affairs ? A wise and 
 virtuous politician* sufficiently gives us to understand that 
 he absolutely condemns that scandalous resource : but, fear- 
 ful of provoking the whole tribe of politicians to assail him 
 at once, like a nest of hornets, he proceeds no further than 
 barely advising them not to practise such manoeuvres except 
 when every other resource fails. As to me, whose pen is 
 employed in developing the sacred and immutable principles- 
 had issued an express order (as being subject; since every sovereign must 
 at liberty to give what orders he pleases surely have a right to prohibit all fo- 
 in his own kingdom,) you should have reign ministers doing any thing in his 
 replied that you receive no commands dominions which may tend to produce 
 but from me: and if, after that, he disorder, and which, moreover, is not 
 had attempted to use violence, the necessary to the exercise of their mi- 
 part which remained for you to act, nisterial functions, 
 was that of withdrawing from his * Mons. Pequet, Discours sur 1'Art 
 court." I think the French monarch de Negocier, p. 91. 
 entertained erroneous ideas on the 
 
 75 2 z 2 593
 
 473 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. of justice, I must, in duty to the moral world, openly aver 
 CHAP. YII. ^at ^ mo( j e O f corruption is directly repugnant to all the 
 rules of virtue and probity, and a flagrant violation of the 
 law of nature. It is impossible to conceive an act of a more 
 flagitious nature, or more glaringly militant against the re- 
 ciprocal duties of men, than that of inducing any one to do 
 evil. The corruptor is undoubtedly guilty of a crime against 
 the wretch whom he seduces ; and as to the sovereign whose 
 secrets are thus treacherously explored, is it not both an 
 offence and an injury committed against him, to abuse the 
 friendly reception given at his court, and to take advantage 
 of it for the purpose of corrupting the fidelity of his servants ? 
 He has a right to banish the eorruptor from his dominions, 
 and to demand justice of his employer. 
 
 If ever bribery be excusable, it is when it happens to be 
 the only possible mode by which we can completely discover 
 [ 474 ] and defeat a heinous plot, capable of ruining, or materially 
 endangering the state in whose service we are employed. 
 In the conduct of him who betrays such a secret, there may, 
 according to circumstances, be no criminality. The great 
 and lawful advantage accruing from the action which we 
 induce him to perform, together with the urgent necessity of 
 having recourse to it, may dispense with our paying too scru- 
 pulous an attention to the questionable complexion of the 
 deed on his part. To gain him over is no more than an act 
 of simple and justifiable self-defence. It every day happens, 
 that, in order to foil the machinations of wicked men, we 
 find ourselves under a necessity of turning to our account 
 the vicious dispositions of men of similar stamp. On this 
 footing it was that Henry the Fourth said to the Spanish 
 minister, that " it is justifiable conduct in an ambassador to 
 have recourse to bribery for the purpose of detecting the 
 intrigues that are carried on against his sovereign's interest ;"* 
 adding, that the affair of Marseilles, that of Metz, and seve- 
 ral others, sufficiently showed that he had good reason for 
 endeavouring to penetrate the schemes which his enemies were 
 plotting at Brussels against the tranquillity of his kingdom. 
 That great prince, it is to be presumed, did not consider 
 bribery and seduction as on all occasions excusable in a foreign 
 minister, since he himself gave orders for the arrest of Bru- 
 neau, the Spanish ambassador's secretary, who had tampered 
 with Mairargues for the clandestine surrender of Marseilles 
 to the Spaniards. 
 
 In "barely taking advantage of the offers made to us by a 
 traitor, whom we have not seduced, our conduct is less in- 
 consistent with justice and honour. But the examples of the 
 Romans, which we have already quoted (Book III. 155, 
 181), and in which there was question of declared enemies, 
 
 * See Solly's Memoirs, and the French historians.
 
 IMMUNITIES OF AMBASSADOKS, ETC. 474 
 
 those examples, I say, sufficiently show that true greatness BOOK iv. 
 of soul disdains even that resource, lest the adoption of it CHAP - YI1 -. 
 should hold out an encouragement to infamous treachery. A 
 prince or a minister, whose ideas of honour are not inferior 
 to those of the ancient Romans above noticed, will never 
 stoop to embrace the proposals of a traitor, except when com- 
 pelled by some dire, uncontrollable necessity : and even then 
 he will regret the degrading circumstance of owing his pre- 
 servation to so unworthy an expedient. 
 
 But I do not here mean to condemn an ambassador for 
 employing civilities and polite attentions, and even presents 
 and promises, with a view to gain friends for his sovereign. 
 To conciliate men's affections and good-will is not seducing 
 them, or impelling them to the perpetration of criminal 
 deeds : and, as to those new friends, it is their business to 
 keep a strict Avatch over their own hearts, lest their attach- 
 ment to a foreign prince should ever warp them from the 
 fidelity which they owe to their lawful sovereign. [ 475 ] 
 
 Should an ambassador forget the duties of his station $ 94. How 
 should he render himself disagreeable and dangerous should he 
 he form cabals and schemes prejudicial to the peace of the 
 citizens, or to the state or prince to whom he is sent there 
 are various modes of punishing him, proportionate to the 
 nature and degree of his offence. If he maltreats the sub- 1. for ordi- 
 jects of the state if he commits any acts of injustice or nar y. traus - 
 violence against them the injured subjects are not to seek grts: 
 redress from the ordinary magistrates, since the ambassador 
 is wholly independent of their jurisdiction : and, for the same 
 reason, those magistrates cannot proceed directly against 
 him. On such occasions, therefore, the plaintiffs are to make 
 application to their sovereign, who demands justice from the 
 ambassador's master, and, in case of a refusal, may order the 
 insolent minister to quit his dominions. 
 
 Should a foreign minister offend the prince himself g 95. 2. for 
 should he fail in the respect which he owes him, or, by his fa j llts com - 
 intrigues, embroil the state and the court the offended 1 ^ t the 
 prince, from a wish to keep measures with the offender's pX^. 
 sovereign, sometimes contents himself with simply requiring 
 that the minister be recalled ; or if the transgression be of a 
 more serious nature, he forbids his appearance at court in the 
 interval while his master's answer is expected ; and, in cases 
 of a heinous complexion, he even proceeds so far as to expel 
 him from his territories. 
 
 Every sovereign has an unquestionable right to proceed in 3 95. Right 
 this manner ; for, being master in his own dominions, no of ordering 
 foreigner can stay at his court, or in his territories, without awa >' an 
 his permission. And though sovereigns are generally "'^y^ 
 obliged to listen to the overtures of foreign powers, and to ty, or justly 
 admit their ministers, this obligation entirely ceases with re- suspected. 
 gard to a minister, who, being himself deficient in the duties 
 
 595
 
 475 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. attached to this station, becomes dangerous to, or justly sus- 
 CHAP. vii. p ecte( j by the sovereign, to whom he can come in no other 
 
 character than that of a minister of peace. Can a prince be 
 obliged to suffer that a secret enemy, who is raising dis- 
 turbances in the state and plotting its ruin, shall remain in 
 his dominions and appear at his court ? Ridiculous was the 
 answer of Philip the Second td queen Elizabeth, on her re- 
 quest that he would recall his ambassador, who was carrying 
 on dangerous plots against her. The Spanish monarch re- 
 fused to recall him, saying, that "the condition of princes 
 would be very wretched indeed, if they were obliged to recall 
 a minister whenever his conduct did not suit the humour or 
 the interest of those with whom he was negotiating."* Much 
 more wretched would be the condition of princes, if they 
 were bound to suffer in their states, and at their court, a mi- 
 nister who was disagreeable or justly suspected, an incendiary, 
 an enemy disguised under the character of an ambassador, 
 who should avail himself of his inviolability for the purpose 
 of boldly plotting schemes of a pernicious tendency. The 
 queen, justly offended at Philip's refusal, put a guard on the 
 [ 476 ] ambassador. f 
 
 97. Right But is a prince on every occasion bound to confine his re- 
 of repressing sentment to the simple expulsion of an ambassador, however 
 force^f he ^^ *^ e enorm ^ es ^ which the latter may have been guilty ? 
 behaves as* Such is the doctrine maintained by some authors, who ground 
 an enemy, their opinion on the absolute independency of a public minis- 
 ter. I own he is independent of the jurisdiction of the coun- 
 try : and I have already said, that, on this account, the com- 
 mon magistrate cannot proceed against him. I further admit, 
 that, in all cases of ordinary transgression, all instances of 
 offensive or disorderly behaviour, which, though injurious to 
 individuals, or to society, do not endanger the safety of the 
 state or of the sovereign, there is that degree of respect due 
 to the ambassadorial character which is so necessary for the 
 correspondence of nations, and to the dignity of the prince 
 represented, that a complaint be first made to him of the 
 conduct of his minister, together with a demand of repara- 
 tion ; and that, if no satisfaction is obtained, the offended 
 sovereign be then content with simply ordering the ambassa- 
 dor to quit his dominions, in case the serious nature of the 
 offences absolutely require that a stop be put to them. But 
 shall an ambassador be suffered with impunity to cabal against 
 the state where he resides, to plot its ruin, to stir up the sub- 
 jects to revolt, and boldly to foment the most dangerous con- 
 spiracies, under the assurance of being supported by his master ? 
 If he behaves as an enemy, shall it not be allowable to treat 
 him as such ? The question admits not of a doubt with re- 
 gard to an ambassador who proceeds to overt acts, who takes 
 
 * Wicquefort, book L 29. t Idem, ibid. 
 
 596
 
 IMMUNITIES OF AMBASSADORS, ETC. 476 
 
 up arms, and uses violence. In such case, those whom he BOOK iv. 
 attacks may repel him : self-defence being authorized by the CHAP - Tn - 
 law of nature. Those Roman ambassadors, who, being sent 
 to the Gauls, fought against them with the people of Clusium, 
 divested themselves of the ambassadorial character.* Can 
 any one therefore imagine that the Gauls were bound to spare 
 them in the hour of battle ? 
 
 The question is more difficult with respect to an ambassa- 98. Am- 
 dor who, without proceeding to overt acts, broaches plots of bassador 
 a dangerous tendency, who, by his occult machinations, ex- *j^ 
 cites the subjects to revolt, and who forms and encourages p^^nT 
 conspiracies against the sovereign or the state. Shall it be conspira- 
 deemed unlawful to repress and inflict exemplary punishment cies. 
 on a traitor who abuses the sacred character with which he 
 is invested, and who is himself the first to set the example of 
 violating the law of nations ? That sacred law provides no less 
 for the safety of the prince who receives an ambassador, than 
 for that of the ambassador himself. But, on the other hand, 
 if we allow the offended prince a right to punish a foreign 
 minister in such cases, the subjects of contest and rupture [ 47 7 ] 
 between sovereigns will become very frequent; and it is 
 much to be feared that the ambassadorial character will cease 
 to enjoy that protection and inviolability which are so essen- 
 tial to it. There are certain practices connived at in foreign 
 ministers, though not always strictly consistent with the rules 
 of rectitude: there are others, again, which are not to be 
 corrected by actual punishment, but simply by ordering the 
 minister to depart. How shall we, in every case, be able to 
 ascertain the precise boundaries of those different degrees of 
 transgression ? When there exists a premeditated design of 
 persecuting a minister, an odious colouring will be given to 
 his intrigues : his intentions and proceedings will be calum- 
 niated by sinister constructions ; even false accusations will 
 be raised against him. Finally, sucti plots as we here allude 
 to are generally conducted with caution : they are carried on 
 so secretly, that, to obtain full proof of them, is a matter of 
 extreme difficulty, and indeed hardly possible, without the 
 formalities of justice, formalities to which we cannot sub- 
 ject a minister who is independent of the jurisdiction of the 
 country. 
 
 In laying down the grounds of the voluntary law of na- 
 tions (Prelim. 21), we have seen that, in particular con- 
 junctures, nations must, with a view to the general advan- 
 tage, necessarily recede from certain rights, which, taken in 
 themselves and abstracted from every other consideration, 
 should naturally belong to them. Thus, although the sove- 
 
 * Livy, book v. chap. 26, where the " Legati, contra jus gentium, arma capi- 
 historian peremptorily decides that those unt." 
 ambassadors violated the law of nations : 
 
 597
 
 477 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. reign who has justice on his side be alone really entitled to 
 CHAP - Yn - all the rights of war (Book III. 188), he is nevertheless 
 obliged to look upon his enemy as enjoying equal rights with 
 himself, and to treat him accordingly (Ibid. 190, 191). 
 The same principles must be our rule in the present case. 
 We may therefore venture to affirm, that, in consideration 
 of the extensive utility, nay, tne absolute necessity of em- 
 bassies, sovereigns are bound to respect the inviolability of 
 an ambassador as long as it is not incompatible with their 
 own safety and the welfare of their state. Consequently, 
 when the intrigues of the ambassador have transpired, and 
 his plots are discovered, when the danger is passed, so that 
 there no longer exists a necessity of laying hands on him in 
 order to guard against it, the offended sovereign ought, in 
 consideration of the ambassadorial character, to renounce 
 his general right of punishing a traitor and a secret enemy 
 who conspires against the safety of the state, and to con- 
 tent himself with dismissing the guilty minister, and requir- 
 ing that punishment to be inflicted on him by the sovereign 
 to whose authority he is subject. 
 
 Such, in fact, is the mode of proceeding established by 
 common consent among the generality of nations, especially 
 those of Europe. Wicquefort* gives us several instances of 
 some of the principal European sovereigns, who, on discover- 
 [ 478 ] ing ambassadors to be guilty of odious machinations, have 
 limited their resentment to the expulsion of the offenders, 
 without even making application to have them punished by 
 their masters, of whom they did not expect to obtain a com- 
 pliance with such a demand. To these instances let us add 
 that of the duke of Orleans, regent of France. That prince, 
 having detected a dangerous conspiracy which had been 
 formed against him by the prince de Cellamare, ambassador 
 from Spain, behaved with great moderation on the occasion, 
 not adopting any severer measures than those of setting a 
 guard over the guilty minister, seizing his papers, and caus- 
 ing him to be conducted out of the kingdom. Another re- 
 markable instance, of very ancient date, stands recorded by 
 the Roman historians, that in which Tarquin's ambassadors 
 were concerned. Having repaired to Rome under pretence 
 of claiming the private property belonging to their master, 
 who had been expelled from his kingdom, they tampered with 
 the profligate young nobility, and engaged them in a black 
 and infamous conspiracy against the liberties of their coun- 
 try. Although such conduct would have authorized the 
 rulers of the Roman state to treat them as enemies, the con- 
 suls and senate nevertheless respected the law of nations in 
 the persons of those ambassadors, f The offenders were sent 
 
 * Ambassad. book i. g 27, 28, 29. tamen gentium valuit Tit Liv. lib. ii. 
 j- Et quamquam visi aunt (legati) cap. 4. 
 commisisse ut hostium loco essent, jus 
 593
 
 IMMUNITIES OF AMBASSADORS, ETC. 478 
 
 back to their employer, without having received any personal BOOK iv. 
 injury : but, from Livy's account of the transaction, it ap- CHAP - YII 
 pears that the letters which they had from the conspirators 
 to Tarquin were taken from them. 
 
 This example leads us to the true rule of the law of na- ? 99. What 
 tions, in the cases now in question. An ambassador cannot ma y be 
 be punished because he is independent : and, for the reasons a * 
 we have alleged, it is not proper to treat him as an enemy, the 
 till he himself proceeds to overt acts of violence : but we are cy of the 
 justifiable in adopting against him every measure which the case< 
 circumstances of the case may reasonably require for the 
 purpose of defeating his machinations and averting the evil 
 which he has plotted. If, in order to disconcert and prevent 
 a conspiracy, it were necessary to arrest or even put to death 
 an ambassador who animates and conducts it, I do not see 
 why we should for a moment hesitate to take either of those 
 steps, not only because the safety of the state is the su- 
 preme law, but also because, independent of that maxim, the 
 ambassador's own deeds give us a perfect and particular 
 right to proceed to such extremities. A public minister, I 
 grant, is independent, and his person is sacred : but it is un- 
 questionably lawful to repel his attacks, whether of a secret 
 or of an open nature, and to defend ourselves against him, 
 whenever he acts either as an enemy or a traitor. And if 
 we cannot accomplish our own preservation without harm 
 thence resulting to him, it is he himself who has laid us un- 
 der a necessity of not sparing him. On such an occasion, 
 it may with great truth be asserted, that the minister has, 
 by his own act, excluded himself from the protection of the 
 law of nations. Suppose the Venetian senate, though ap- 
 prised of the marquis of Bedamar's conspiracy, and impressed 
 with a thorough conviction of that minister's being the prime [ 479 ] 
 mover and director of the whole business, had nevertheless 
 been, in other particulars, destitute of sufficient information 
 to enable them to crush the detestable plot, suppose they 
 had been uncertain with respect to the number and rank of 
 the conspirators, the designs they had in agitation, and the 
 particular quarter where the meditated mischief was to burst 
 forth, whether an intention was entertained of exciting a 
 revolt among the marine or the land forces, or effecting the 
 clandestine capture of some important fortress, would they, 
 under such circumstances, have been bound to suffer the 
 ambassador to depart unmolested, and thus afford him an 
 opportunity of joining and heading his accomplices, and of 
 bringing his designs to a successful issue ! No man will 
 seriously answer in the affirmative : the senate, therefore, 
 would have had a right to arrest the marquis and all his 
 household, and even to extort from them their detestable 
 secret. But those prudent republicans, seeing the danger 
 was removed, and the conspiracy totally suppressed, chose 
 
 599
 
 479 .OF EIGHTS, PRIVILEGES, AND 
 
 BOOK iv. to keep measures with Spain : wherefore they prohibited all 
 
 CHAP " VIL accusation of the Spaniards as concerned in the plot, and 
 
 contented themselves with simply requesting the ambassador 
 
 to withdraw, in order to screen himself from the rage of the 
 
 populace. 
 
 100. Am- In this case the same rule is to be followed which we have 
 
 alrea( ty laid down ( Book IIL J 36 ') in treatin g of what may 
 lawfully be done to an enemy. Whenever an ambassador 
 sovereign's acts as an enemy, we are justifiable in adopting against him 
 life. every measure that is necessary for the purpose of defeating 
 
 his evil designs and insuring our own safety. It is on the 
 same principle, and under the idea which represents the am- 
 bassador as a public enemy when he behaves as such, that we 
 proceed to determine the treatment he ought to receive in 
 case he pursues his criminal career to the last stage of enor- 
 mity. If an ambassador commit any of those atrocious 
 crimes which sap the very foundations of the general safety 
 of mankind, if he attempt to assassinate or poison the 
 prince who has received him at his court, he unquestionably 
 deserves to be punished as a treacherous enemy guilty of 
 poisoning or assassination (See Book III. 155). The am- 
 bassadorial character, which he has so basely prostituted, 
 cannot shield him from the sword of justice. Is the law of 
 nations to protect such a criminal, when the personal secu- 
 rity of all sovereigns and the general safety of mankind 
 loudly demand that his crime should be expiated by the sacri- 
 fice of his forfeit life ? It is true, indeed, that we have little 
 room to apprehend that a public minister will proceed to such 
 dreadful enormities : for it is generally men of honour who 
 are invested with the character of ambassadors ; and even 
 if there should, among the number, be some whose con- 
 sciences are callous to every scruple, the difficulties, never- 
 theless, and the magnitude of the danger, are sufficient to 
 deter them from the attempt. Yet such crimes are not 
 [ 480 ] wholly unexampled in history. Monsieur Barbeyrac* in- 
 stances the assassination of the lord of Sirmium by an am- 
 bassador of Constantinus Diogenes, governor of the neigh- 
 bouring province for Basilius II., emperor of Constantinople; 
 and for his authority he quotes the historian Cedrenus. The 
 following fact is likewise to the purpose. In the year 1382, 
 Charles III., king of Naples, having sent to his competitor, 
 Louis duke of Anjou, a knight named Matthew Sauvage, in 
 the character of a herald, to challenge him to single combat, 
 the herald was suspected of carrying a demi-lance whose 
 point was tinged with a poison of so subtle a nature, that who- 
 ever should look steadfastly on it, or even suffer it to touch 
 his clothes, would instantly drop down dead. The duke, 
 
 * In his notes on Bynkershoek's treatise on the Competent Judge of Am- 
 bassadors, ch. xxiv. 5, note 2. 
 600
 
 IMMUNITIES OF AMBASSADORS, ETC. 480 
 
 being apprized of the danger, refused to admit the herald BOOK rv. 
 into his presence, and ordered him to be taken into custody. CHAP - ""*-. 
 The culprit was interrogated, and, upon his own confession, 
 suffered the punishment of decapitation. Charles complained 
 of the execution of his herald, as an infraction of the laws 
 and usages of war : but Louis, in his reply, maintained that 
 he had not violated those laws in his treatment of Sauvage, 
 who had been convicted by his own confession.* Had the 
 crime imputed to the herald been clearly substantiated, he 
 was an assassin, whom no law could protect. But the very 
 nature of the accusation sufficiently proves that it was a 
 false and groundless charge. 
 
 The question of which we have been treating has been g 101. Two 
 debated in England and France on two famous occasions, remarkable 
 In the former of those countries, the question arose in the 
 case of John Leslie, bishop of Ross, ambassador from Mary, 
 queen of Scots. That minister was continually intriguing ties of public 
 against queen Elizabeth, plotting against the tranquillity of ministers, 
 the state, forming conspiracies, and exciting the subjects to 
 rebellion. Five of the most able civilians, being consulted 
 by the privy council, gave it as their opinion, that " an am- 
 bassador raising a rebellion against the prince at whose court 
 he resides, forfeits the privileges annexed to his character, 
 and is subject to the punishment of the law." They should 
 rather have said, that he may be treated as an enemy. But 
 the council contented themselves with causing the bishop to 
 be arrested, and after having detained him a prisoner in the 
 Tower for two years, set him at liberty when there was no 
 longer any danger to be apprehended from his intrigues, and 
 obliged him to depart from the kingdom.f This instance 
 may serve to confirm the principles which we have laid down ; 
 and the like may be said of the following. Bruneau, secre- 
 tary to the Spanish ambassador in France, was detected in 
 the very act of treating with Mairargues, in a time of pro- 
 found peace, for the surrender of Marseilles to the Spaniards. 
 The secretary was thereupon committed to prison, and was [ 481 ] 
 subjected to a judicial examination by the parliament before 
 whom Mairargues was tried. That body, however, did not 
 pronounce sentence of condemnation on Bruneau, but referred 
 his case to the king, who restored him to his master, on con- 
 dition that the latter should order him to depart immediately 
 from the kingdom. The ambassador warmly complained of 
 the imprisonment of his secretary : but Henry IV. very judi- 
 ciously answered, that "the law of nations does not forbid 
 putting a public minister under an arrest, in order to hinder 
 him from doing mischief." The king might have added, that 
 a nation has even a right to adopt, against a public minister, 
 
 * History of the Kings of the Two Sicilies, by Monsieur D'Egly. 
 f Cambden's Annal. Angl. ad ann. 1571, 1573. 
 
 76 3 A 601
 
 481 OF BIGHTS, PRIVILEGES, AND 
 
 BOOK iv. every measure which may be necessary for the purpose of 
 CHAP. YII. war( ij n g O ff the mischief he meditates against her, of defeat- 
 ing his projects, and preventing their evil consequences. It 
 was on this principle that the parliament were authorized to 
 interrogate Bruneau, for the purpose of discovering all the 
 parties concerned in so dangerous a conspiracy. The ques- 
 tion, whether foreign ministers who violate the law of nations 
 do thereby forfeit their privileges, was warmly debated at 
 Paris, but, without waiting to have the point decided, the 
 king restored Bruneau to his master.* 
 
 102. Whe- It is not lawful to maltreat an ambassador by way of reta- 
 therrepri- liation: for the prince who uses violence against a public 
 madron an mil " ster * s guilty of a crime ; and we are not to take ven- 
 ambassador. geance for his misconduct by copying his example. We 
 never can, under pretence of retaliation, be authorized to 
 commit actions which are in their own nature unjustifiable : 
 and such undoubtedly would be any instance of ill treatment 
 inflicted on an unoffending minister as a punishment for his 
 master's faults. If it be an indispensable duty to pay a 
 general regard to this rule in cases of retaliation, it is more 
 particularly obligatory with regard to an ambassador, on 
 account of the respect due to his character. The Cartha- 
 ginians having violated the law of nations in the persons of 
 the Roman ambassadors, the ambassadors of that perfidious 
 nation were brought to Scipio, who, being asked how he 
 would have them to be treated, replied, " Not in the manner 
 that the Carthaginians have treated ours." Accordingly he 
 [ 482 ] dismissed them in safety :f but at the same time he made 
 preparations for chastising, by force of arms, the state which 
 had violated the law of nations.J There cannot be a better 
 
 * See the discussion of the question, with common decency." La Croix, 
 
 and the discourse which Henry IV. held Hist, of Timur-Bec, book ii. chap. 26. 
 
 on this subject to the Spanish ambassa- The same historian, in his account of 
 
 dor, in the Memoires de Nevers, vol. ii. Barcouc, sultan of Egypt, who put 
 
 p. 858, et seq., in Matthieu, vol. ii. book Timur's ambassador to death, observes, 
 
 iii. and other historians. " that it was an infamous action ; 
 
 Joseph Sofi, king of Carezem, having that to insult an ambassador is a vio- 
 
 iinprisoned an ambassador of Timur- lation of the law of nations, and a 
 
 Bee, Timur's secretary of state wrote deed at which nature herself shudders." 
 
 him a letter couched in strong terms Ibid, book v. chap. 17. Edit A.D. 
 
 of expostulation on the subject of that 1797. 
 
 infraction of the law of nations, in- f Appian, quoted by Grotius, lib. ii. 
 
 forming him that " it is a maxim with cap. 28, g 7. According to Diodorus 
 
 kings to consider the person of an am- Siculus, Scipio said to the Romans, 
 
 bassador as sacred : for which reason " Do not imitate that conduct with 
 
 he is always held exempt from the which you reproach the Carthagi- 
 
 punishment of death or imprisonment, mans." EKITTKJI/ owe E^IJ 6ctv Trparrav 5 
 
 if the sovereign to whom he is sent rot; Kapxrfoviois /rtyaXouo-j. Diod. Sic. 
 
 has even the slightest knowledge of Excerpt. Peiresc. p. 290. 
 
 the law of nations, or the ambassador J Livy, book xxx. chap. 28, 7. 
 
 himself does but possess sufficient pru- That historian makes Scipio say, 
 
 dence to refrain from the commission "Though the Carthaginians have 
 
 of any heinous offence, and to behave violated the faith of the truce, and the
 
 IMMUNITIES OF AMBASSADORS, ETC. 482 
 
 pattern for sovereigns to follow on such an occasion. If the BOOK IT. 
 injury for which we would make retaliation does not concern CHAP - *" 
 a public minister, there exists a still stronger certainty that 
 we must not retaliate on the ambassador of the sovereign 
 against whom our complaint lies. The safety of public 
 ministers would be very precarious, if it were liable to be 
 affected by every casual difference that might arise. But 
 there is one particular case in which it appears perfectly 
 justifiable to arrest an ambassador, provided no ill treatment 
 be given to him in other respects. When, for instance, a 
 prince has, in open violation of the law of nations, caused 
 our ambassador to be arrested, we may arrest and detain 
 his, as a pledge for the life and liberty of ours. But should 
 this expedient prove unsuccessful, it would become our duty 
 to liberate the unoffending minister, and to seek redress by 
 more efficacious measures. Charles the Fifth caused the 
 French ambassador, who had made him a declaration of war, 
 to be put under an arrest ; whereupon Francis the First 
 caused Granvelle, the emperor's ambassador, to be arrested 
 in like manner. At length, however, it was agreed that both 
 those ministers should be conducted to the frontier, and re- 
 leased at the same time.* 
 
 We have derived the independence and inviolability of the \ 103. 
 ambassadorial character from the natural and necessary prin- A s ree en * 
 ciples of the law of nations. These prerogatives are further on g^ning 
 confirmed by the uniform practice and general consent of the privi- 
 mankind. We have seen above ( 84), that the Spaniards leges of 
 found the right of embassies established and respected in^ assa - 
 Mexico. The same principle also prevails even among the 
 savage tribes of North America : and if we thence turn our 
 eye to the other extremity of the globe, we find that ambas- 
 sadors are highly respected in China. In India also the same 
 rule is observed, though with less scrupulous punctuality :f 
 the king of Ceylon, for instance, has sometimes imprisoned 
 the ambassadors of the Dutch East-India company. Being 
 master of the places which produce cinnamon, he knows that 
 the Dutch, in consideration of a profitable commerce, will 
 overlook many irregularities in his conduct ; and, with the 
 true disposition of a barbarian, he takes an undue advantage 
 of that circumstance. The Koran enjoins the moslems to re- 
 spect public ministers : and if the Turks have not in all in- 
 stances uniformly observed that precept, their violations of [ 483 ] 
 it are rather imputable to the ferocity of particular princes 
 than to the principles of the nation at large. The rights 
 of ambassadors were formerly very well known among the 
 
 law of nations, in the person of our * Mezeray's Hist of France, vol. ii. 
 
 ambassadors, I will do nothing against p. 470. 
 
 theirs that is unworthy of the maxims f General Hist of Voyages, art 
 
 of the Roman people, and of my own China, and Indies. 
 
 principles." 
 
 603
 
 483 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. Arabs. A writer of that nation* relates the following inci- 
 CHAP. vii. ^ en ^. . Khaled, an Arabian chief, having come, in the cha- 
 racter of ambassador, to the army of the emperor Heraclius, 
 used insolent language to the general : whereupon the latter 
 observed to him, that " ambassadors were protected from 
 all kind of violence by the law which universally prevailed 
 among nations : and it was probably that consideration which 
 had emboldened the Arab to speak to him in so indecent a 
 manner, "f It would be quite unnecessary, in this place, to 
 accumulate the various examples with which the history of 
 the European nations presents us : the enumeration would 
 be endless ; and the established customs of Europe on this 
 subject are sufficiently known. Saint Louis, when at Acra 
 in Palestine, gave a remarkable instance of the protection 
 due to public ministers : an ambassador from the Old Man 
 of the Mountain, or prince of the Assassins, speaking inso- 
 lently to the French monarch, the grand-masters of the 
 orders of the Temple and the Hospital informed that minis- 
 ter, that, " were it not for the respect paid to the character 
 with which he was invested, they would cause him to be 
 thrown into the sea."$ The king, however, dismissed him 
 without suffering the slightest injury to be done him. Never- 
 theless, as the prince of the Assassins was on his own part 
 guilty of grossly violating the most sacred rights of nations, 
 it would have been reasonable to suppose that his ambassa- 
 dor had no claim to protection, except indeed on this single 
 consideration, that, as the privilege of inviolability is founded 
 on the necessity of keeping open a safe channel of commu- 
 nication, through which sovereigns may reciprocally make 
 proposals to each other, and carry on negotiations both in 
 peace and in war, the protection should therefore extend 
 even to the envoys of those princes, who, guilty themselves 
 of violating the law of nations, would otherwise have no title 
 to our respect. 
 
 gi04. Free There are rights of another nature, which, though not 
 exercise of necessarily annexed to the character of a public minister, 
 religion. are nevertheless allowed to him by established custom in 
 almost every country. One of the principal of these is the 
 free exercise of his religion. It is, indeed, highly proper 
 that a minister, and especially a resident minister, should 
 enjoy the free exercise of his religion within his own house, 
 for himself and his retinue. But it cannot be said that this 
 right, like those of independence and inviolability, is abso- 
 lutely necessary to the success of his commission, particu- 
 larly in the case of a non-resident minister, the only one 
 whom nations are bound to admit ( 66). The minister may ) 
 
 * Alvakedi's History of the Conquest of Syria, 
 t Ockley's History of the Saracens, vol. i. 
 j Choisy's History of St. Louis. 
 
 604
 
 CHAP. VII. 
 
 IMMUNITIES OF AMBASSADORS, ETC. 484 
 
 in this respect, do what he pleases in his own house, into BOOK iv. 
 which nobody has a right to pry or to enter. But, if the 
 sovereign of the country where he resides should, for sub- 
 stantial reasons, refuse him permission to practise his reli- 
 gion in any manner which might render it an object of pub- 
 lic notice, we must not presume to condemn the conduct of 
 that sovereign, much less to accuse him of violating the law 
 of nations. At present, ambassadors are not debarred the 
 free exercise of their religion in any civilized country : for a 
 privilege which is founded on reason cannot be refused when 
 it is attended with no ill consequence. 
 
 Among those rights that are not necessary to the success 105. Whe- 
 of embassies, there are, on the other hand, some which are ther an a ~ 
 not founded on a general consent of nations, but which are e^pted 
 nevertheless, by the custom of several countries, annexed to f rom all im- 
 the ambassadorial character. Of this number is the ex emp- posts, 
 tion of things brought into or sent out of the country by a 
 foreign minister from the customary duties on importation 
 and exportation. There is no necessity that he should be 
 favoured with any distinction in that respect, since his pay- 
 ment of those duties will not render him the less capable of 
 discharging his functions. If the sovereign is pleased to 
 exempt him from them, it is an instance of civility which the 
 minister could not claim as matter of right, any more than 
 that his baggage, or any chests or packages which he imports 
 from abroad, shall not be searched at the custom-house. 
 Thomas Chaloner, the English ambassador in Spain, sent 
 home a bitter complaint to Queen Elizabeth, his mistress, that 
 the custom-house officers had opened his trunks in order 
 to search them. But the queen returned him for answer, 
 that it was "the duty of an ambassador to wink at every 
 thing which did not directly offend the dignity of his sove- 
 reign."* 
 
 The independency of the ambassador exempts him indeed 
 from every personal imposition, capitation, or other duty of 
 that nature, and in general from every tax relating to the 
 character of a subject of the state. But as for duties laid 
 on any kind of goods or provisions, the most absolute inde- 
 pendency does not exempt him from the payment of them : + 
 even sovereigns themselves are subject to them. In Holland, 
 the following rule is observed: ambassadors are exempt 
 from the taxes on consumption, doubtless, because those 
 taxes are more directly of a personal nature : but they pay 
 the duties on importation and exportation. 
 
 However extensive their exemption may be, it is manifest 
 that it solely relates to things intended for their own use. 
 Should they abuse and make a shameful traffic of it by lend- 
 ing their name to merchants, the sovereign has unquestionably 
 
 * Wicquefort's Ambass. book i. g 28, towards the end. 
 
 3A2 605
 
 485 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. a right to put a stop to the fraud, even by suppressing the 
 CHAP, vii. privilege. Such things have been known in several places; 
 and the sordid avarice of some ministers, who made a trade 
 of their exemption, has obliged the sovereign to deprive 
 them of it. At present, the foreign ministers at Peters- 
 burgh are subject to the duties on importation ; but the 
 empress has the generosity to indemnify them for the loss 
 of a privilege which they had no right to claim, and which, 
 from the frequency of its abuse, she had been obliged to 
 abolish. 
 
 106. Obii- But, here it is asked, whether a nation may abolish what 
 gation general custom has established with respect to foreign minis- 
 use^nd n ters ' ^ et ^ ^^ cons ^ er wnat obligation custom and 
 custom received usage can impose on nations, not only in what con- 
 cerns ministers, but also in any other instance, in general. 
 The usages and customs of other nations are no further obli- 
 gatory on an independent state, than as she has expressly or 
 tacitly given her consent to them. But when once a custom, 
 indifferent in itself, has been generally established and re- 
 ceived, it carries the force of an obligation on the states 
 which have tacitly or expressly adopted it. Nevertheless, if, 
 in process of time, any nation perceives that such custom is 
 attended with inconveniences, she is at liberty to declare that 
 she no longer chooses to conform to it : and when once she 
 has made this explicit declaration, no cause of complaint lies 
 against her for refusing thenceforward to observe the custom 
 in question. But such a declaration should be made before- 
 hand, and at the time when it does not affect any particular 
 nation : it is too late to make it when the case actually exists : 
 for it is a maxim universally received, that a law must never 
 be changed at the moment of the actual existence of the 
 particular case to which we would apply it. Thus, on the 
 subject before us, a sovereign who has previously notified his 
 intentions, and received an ambassador only on that footing, 
 is not obliged to allow him the enjoyment of all the privi- 
 leges, or to pay him all the honours, which custom had before 
 annexed to the ambassadorial character, provided that the 
 privileges and honours which are withheld be not essential to 
 the nature of the embassy, and necessary to insure its legiti- 
 mate success. To refuse privileges of this latter kind, would 
 be the same thing in effect as refusing the embassy itself, a 
 conduct which a state is not at liberty to pursue generally 
 and on every occasion ( 65), but in those instances only 
 where the refusal is founded on some very substantial reason 
 To withhold honours which are consecrated by custom and 
 become in a manner essential,, is an expression of contempt, 
 and an actual injury. 
 
 Here it must be further observed, that, when a sovereign 
 intends to break through an established custom, the rule 
 should be general. To refuse certain customary honours or 
 
 606
 
 IMMUNITIES OF AMBASSADORS, ETC. 485 
 
 privileges to the ambassador of one nation, and to continue BOOK iv. 
 the enjoyment of them to others, is an affront to that nation, CHAP - Tn - 
 a mark of contempt, or at least of ill-will. 
 
 Sometimes princes send to each other secret ministers, g ior. A 
 whose character is not public. If a minister of this kind be mmlster 
 insulted by a person unacquainted with his character, such J^" ^ t 
 insult is no violation of the law of nations : but the prince public, 
 who receives this ambassador and knows him to be a public 
 minister, is bound by the same ties of duty towards him as [ 486 ] 
 towards a publicly acknowledged ambassador, and under 
 equal obligation to protect him, and as far as in his power, 
 to insure him the full enjoyment of that inviolability and 
 independence which the law of nations annexes to the am- 
 bassadorial character. No excuse, therefore, can be offered 
 for the conduct of Francis Sforza, duke of Milan, in putting 
 to death Maraviglia, secret minister of Francis the First. 
 Sforza had often treated with that secret agent, and had 
 acknowledged him as the French monarch's minister.* 
 
 We cannot introduce in any more proper place an im- g 108. A 
 portant question of the law of nations, which is nearly allied sovereign in 
 to the right of embassies. It is asked, what are the rights ^^ n 
 of a sovereign, who happens to be in a foreign country, and c un ry- 
 how the master of the country is to treat him ? If that prince 
 be come to negotiate, or to treat about some public affair, he 
 is doubtless entitled in a more eminent degree to enjoy all 
 the rights of ambassadors. If he be come as a traveller, his 
 dignity alone, and the regard due to the nation which he re- 
 presents and governs, shelters him from all insult, gives him 
 a claim to respect and attention of every kind, and exempts 
 him from all jurisdiction. On his making himself known, he 
 cannot be treated as subject to the common laws ; for it is 
 not to be presumed that he has consented to such a subjec- 
 tion : and if a prince will not suffer him in his dominions on 
 that footing, he should give him notice of his intentions. 
 But, if the foreign prince forms any plot against the safety 
 and welfare of the state, in a word, if he acts as an enemy, 
 he may very justly be treated as such. In every other 
 case he is entitled to full security, since even a private indi- 
 vidual of a foreign nation has a right to expect it. 
 
 A ridiculous notion has possessed the minds even of per- 
 sons who deem themselves superior in understanding to the 
 common herd of mankind. They think that a sovereign who 
 enters a foreign country without permission, may be arrested 
 there. f But on what reason can such an act of violence be 
 
 * See the Memoirs of Martin Du Gramond's Hist. Gall. lib. xii. The 
 
 Bellay, book iv., and Father Daniel's Cardinal De Richelieu also alleged 
 
 History of France, vol. v. p. 300, this trifling reason, when he gave 
 
 <fce. orders for arresting Charles Lewis, 
 
 f It is surprising to see a grave the elector Palatine, who had attempt- 
 historian give into this opinion. See ed to pass through France incognito: 
 
 607
 
 486 
 
 OF RIGHTS, PRIVILEGES, AND 
 
 BOOK iv. grounded? The absurdity of the doctrine carries its own 
 _CHAP. YII. re f u tation on the face of it. A foreign sovereign, it is true, 
 ought to give notice of his coming, if he wishes to receive 
 such treatment as he is entitled to expect. It would, more- 
 over, be prudent in him to make application for passports, in 
 order that designing malevolence may not have any pretext, 
 any hope of finding specious ^reasons to palliate an act of 
 [ 487 ] injustice and violence. I further allow, that, as the pre- 
 sence of a foreign sovereign may on certain occasions be pro- 
 ductive of serious consequences, if the times are in anywise 
 critical, and the motives of his journey liable to suspicion, 
 he ought not to undertake it without the consent and appro- 
 bation of the prince whose territories he means to enter. 
 When Peter the Great determined personally to visit foreign 
 countries in quest of the arts and sciences to enrich his empire, 
 he travelled in the retinue of his own ambassadors. 
 
 A foreign prince unquestionably retains all his rights over 
 his own state and subjects, and may exercise them in every 
 instance that does not affect the sovereignty of the country 
 in which he is a sojourner. The king of France, therefore, 
 appears to have been too punctilious in refusing to permit 
 the emperor Sigismund, when at Lyons, to confer the dig- 
 nity of duke on the count of Savoy, who was a vassal of the 
 empire (see Book II. 40). Less difficulty would have been 
 made with any other prince : but the court was scrupulously 
 careful to guard against the old claims of the emperors. On 
 the other hand, it was with very good reason that the same 
 court expressed considerable displeasure at the conduct of 
 Queen Christina, who, whilst residing in France, caused one 
 of her domestics to be executed in her own house: for an 
 execution of that kind is an act of territorial jurisdiction : 
 and besides, Christina had abdicated the crown. Her re- 
 servations, her birth, her dignity, might indeed entitle her to 
 great honours, or, at most, to an entire independence, but 
 not to all the rights of an actual sovereign. The famous 
 instance of Mary Queen of Scots, so often quoted on ques- 
 tions on this subject, is not a very apposite example: for 
 that princess was no longer in possession of the crown at the 
 time when she came to England, and was arrested, tried, and 
 condemned to death. 
 
 g 109. De- The deputies sent to the assembly of the states of a king- 
 
 puties to the dom, or a republic, are not public ministers like those of 
 
 ltes ' whom we have spoken above, as they are not sent to foreign 
 
 he said, that "no foreign prince was pretended to have a greater right than 
 permitted to pass through the kingdom any other power, because those con- 
 without a passport" But he added quests had been made with the money 
 better reasons, drawn from the prince furnished by that kingdom. See the 
 Palatine's designs against Brissac and History of the Treaty of Westphalia, 
 the other places left by Bernard, duke by Father Bougant, vol. ii. in 12mo. 
 of Saxe-Weymar, and to which France p. 88.
 
 IMMUNITIES OF AMBASSADORS, ETC. 487 
 
 powers: but they are public persons, and in that character BOOK rr. 
 are possessed of privileges which it is our duty to establish CHAP - vn - 
 before we take leave of this subject. The states which have 
 a right to meet by deputies for the purpose of deliberating 
 on public affairs, are, from that very circumstance, entitled 
 to demand perfect security for their representatives, together 
 with every exemption and immunity that is necessary to the 
 free discharge of their functions. If the persons of the de- 
 puties be not inviolable, their constituents cannot be assured 
 of their fidelity in asserting the rights of the nation and 
 courageously defending the public interests. And how could 
 those representatives duly acquit themselves of their func- 
 tions, if people were allowed to molest them by arrests, either 
 for debt or for ordinary offences ? Between the nation and 
 the sovereign, in this case, the same reasons hold good, on 
 which, between state and state, the immunities of ambassa- 
 dors are founded. We may therefore safely venture to as- 
 sert, that the rights of the nation, and the public faith, secure 
 those deputies from violence of every kind, and even from 
 any judicial prosecution, during the term of their ministry. 
 Such indeed is the rule observed in all countries, and par- [ 488 ] 
 ticularly at the diets of the empire, the parliaments of Eng- 
 land, and the cortes of Spain. Henry the Third, of France, 
 caused the duke and the Cardinal de Guise to be killed at 
 the meeting of the states at Blois. Unquestionably the se- 
 curity of the assembly was violated by that action : but those 
 two princes were factious rebels, whose audacious views aimed 
 at nothing less than depriving their sovereign of his crown. 
 And if it was equally certain that Henry was no longer pos- 
 sessed of sufficient power to bring them to a formal trial, and 
 punish them according to the laws, the necessity of justifiable 
 self-defence gave the king a right to adopt the mode which 
 he pursued, and furnishes a sufficient apology for his conduct. 
 It is the misfortune of weak and unskilful princes, that they 
 suffer themselves to be reduced to extremities, from which 
 they cannot extricate themselves without a violation of every 
 established rule. It is said that Pope Sextus the Fifth, on 
 hearing of the catastrophe of the Duke de Guise, commended 
 that resolute act as a necessary stroke of policy ; but when 
 he was told that the cardinal had likewise been killed, he 
 burst into a violent paroxysm of rage.* This, indeed, was 
 carrying his haughty pretensions to an excessive height. 
 The pontiff readily allowed that urgent necessity had au- 
 thorized *Henry to violate the security of the states, and to 
 break through all the forms of justice : and could he pretend 
 that this prince, rather than be deficient in respect for the 
 Roman purple, should risk both his crown and his life ? 
 
 * See the French historians. 
 77 609
 
 488 OF THE JUDGE OF AMBASSADORS 
 
 BOOK IV. 
 CHAP. Till. 
 
 CHAP. VIII. 
 
 OF THE JUDGE OF AMBASSADORS IN CIVIL CASES. 
 
 no. The SOME authors will have an, ambassador to be subject, in 
 ambassador c i v il cases, to the jurisdiction of the country where he re- 
 from^he k s ^ es > at * east * n suc ^ cases as ^ ave ar ^ sen during the time 
 ciu juris- f his embassy ; and, in support of their opinion, they allege 
 diction of that this subjection is by no means derogatory to the am- 
 the country bassadorial character: "for," say they, "however sacred a 
 w ^ e be person may be, his inviolability is not affected by suing him 
 in a civil action." But it is not on account of the sacred- 
 ness of their person that ambassadors cannot be sued : it is 
 because they are independent of the jurisdiction of the coun- 
 try to which they are sent ; and the substantial reasons on 
 which that independency is grounded may be seen in a pre- 
 ceding part of this work ( 92). Let us here add, that it is 
 in every respect highly proper, and even necessary, that an 
 ambassador should be exempt from judicial prosecution even 
 in civil causes, in order that he may be free from molestation 
 in the exercise of his functions. For a similar reason, it was 
 not allowed, among the Romans, to summon a priest while 
 [ 489 ] he was employed in his sacred offices :* but at other times 
 he was open to the law. The reason which we have here 
 alleged for the exemption is also assigned in the Roman law : 
 "Ideo enim non datur actio (adversus legatum) ne ab officio 
 suscepto legationis avocetur^ ne impediatur legatio^" But 
 there was an exception as to those transactions which had 
 taken place during the embassy. This was reasonable with 
 regard to those legati, or ministers, of whom the Roman law 
 here speaks, who, being sent only by nations subject to the 
 empire, could not lay claim to the independency enjoyed by 
 a foreign minister. As they were subjects of the state, the 
 legislature was at liberty to establish whatever regulations it 
 thought most proper respecting them: but a sovereign has 
 not the like power of obliging the minister of another sove- 
 reign to submit to his jurisdiction : and even if such power 
 was vested in him by convention, or otherwise, the exercise 
 of it would be highly improper : because, under that pretext, 
 the ambassador might be often molested in his ministry, and 
 the state involved in very disagreeable quarrels, for the tri- 
 fling concerns of some private individuals, who might and 
 ought to have taken better precautions for their own security. 
 It is, therefore, only in conformity to the mutual duties 
 
 * Nee pontificem (in jus vocari f Digest lib. v. tit 1, de Judiciia, 
 
 oportet) dum sacra facit Digest, lib. Ac. leg. 24, 2. 
 
 ii. tit 4. De in Jus vocando, leg. 2. \ Ibid. leg. xxvi. 
 010 

 
 IN CIVIL CASES. 489 
 
 which states owe to each other, and in accordance with the BOOK nr. 
 grand principles of the law of nations, that an ambassador CHAP - YIir -_ 
 or public minister is at present, by the universal custom and 
 consent of nations, independent of all jurisdiction in the 
 country where he resides, either in civil or criminal cases. 
 I know there have occurred some instances to the contrary ; 
 but a few facts do not establish a custom : on the contrary, 
 those to which I allude, only contribute, by the censure 
 passed on them, to prove the custom such as I have asserted 
 it to be. In the year 1668, the Portuguese resident at the 
 Hague was, by an order of the court of justice, arrested and 
 imprisoned for debt. But an illustrious member of the same 
 court* very justly thinks that the procedure was unjustifiable, 
 and contrary to the law of nations. In the year 1657, a 
 resident of the elector of Brandenburg was also arrested for 
 debt in England. But he was set at liberty, as having been 
 illegally arrested ; and even the creditors and officers of jus- 
 tice who had offered him that insult were punished, f 
 
 But if an ambassador chooses to renounce a part of his m. How 
 independency, and to subject himself in civil affairs to the hema 7 vo ~ 
 jurisdiction of the country, he is undoubtedly at Wberty 
 to do so, provided it be done with his master's consent. g e if to it 
 Without such consent, the ambassador has no right to re- 
 nounce privileges in which the dignity and service of his 
 sovereign are concerned, which are founded on the master's 
 rights, and instituted for his advantage, not for that of the [ 490 ] 
 minister. It is true, indeed, that the ambassador, without 
 waiting for his sovereign's permission, acknowledges the 
 jurisdiction of the country when he commences a suit as 
 plaintiff in a court of justice. But the consequence, in that 
 case, is inevitable ; and besides, in a civil cause, on a point 
 of private interest, no inconvenience attends it ; since the 
 ambassador has it at all times in his power to avoid com- 
 mencing a suit, or may, if such a step be necessary, intrust 
 the prosecution of his cause to an attorney or lawyer. 
 
 Let us here add, by the way, that an ambassador ought 
 never to institute a prosecution on a criminal charge. If 
 he has been insulted, he should make his complaint to the 
 sovereign ; and the delinquent is to be prosecuted by the 
 public. 
 
 It may happen that the minister of a foreign power is at 112. A 
 the same time a subject of the state where he is employed ; "j^J 6 * 
 and in this case, as a subject, he is unquestionably under ^ject'of 
 the jurisdiction of the country in every thing which does not the state 
 directly relate to his ministry. But the question is, to de- where ho is 
 
 . employed. 
 
 * M. de Bynkershoek's Competent his creditors, and refused a passport by 
 Judge of Ambassadors, chap. xiii. 1. the French court. See Journal Poli- 
 
 f Ibid. It is not long since the world tique de Bouillon, Feb. 1, 1771, p. 54, 
 witnessed the circumstance of a foreign and Jan. 15, p. 57. 
 minister in France being pursued by 
 
 611
 
 490 OF THE JUDGE OF AMBASSADORS 
 
 BOOK iv. termine in what cases those two characters, of subject and 
 CHA *;, VI11 -,. foreign minister, are united in the same person. To produce 
 such union, it is not sufficient that the minister was born a 
 subject of the state to which he is sent ; for unless the laws 
 expressly prohibit every citizen to leave his country, he may 
 legally have renounced his country, and placed himself in 
 subjection to a new master. He may, likewise, without re- 
 nouncing his country for ever, become independent of it 
 during the whole time that he spends in the service of a 
 foreign prince ; and the presumption is certainly in favour 
 of such independency : for the state and functions of a pub- 
 lic minister naturally require that he should depend only on 
 his master ( 92), on the prince who has intrusted him with 
 the management of his affairs. Whenever, therefore, there 
 does not exist any circumstance which furnishes a proof or 
 indication to the contrary, a foreign minister, though ante- 
 cedently a subject of the state, is reputed to be absolutely 
 independent of it during the whole time of his commission. 
 If his former sovereign does not choose to allow him such 
 independency in his dominions, he may refuse to admit him 
 in the character of a foreign minister, as is the practice in 
 France, where, according to Monsieur De Callieres, "the king 
 no longer receives any of his own subjects as ministers of 
 foreign princes."* 
 
 But a subject of the state may still continue its subject, 
 notwithstanding his acceptance of a commission from a fo- 
 reign prince. His subjection is expressly established when 
 the sovereign acknowledges him as minister only, with a 
 reserve that he shall remain a subject of the state. The 
 states-general of the United Provinces, in a decree of the 
 [ 491 ] 19th of June, 1681, declare, " That no subject of the state 
 shall be received as ambassador or minister of another power, 
 but on condition that he shall not divest himself of his cha- 
 racter of subject, even with regard to jurisdiction both in 
 civil and criminal affairs, and that whoever, in making 
 himself known as ambassador or minister, has not mentioned 
 his quality of subject of the state, shall not enjoy those 
 rights or privileges which peculiarly belong to the ministers 
 of foreign power s."f 
 
 Such a minister may likewise retain his former subjection 
 tacitly ; and then, by a natural consequence, drawn from his 
 actions, state, and whole behaviour, it is known that he con- 
 tinues a subject. Thus, independent of the declaration above 
 mentioned, those Dutch merchants who obtain the title of 
 residents of certain foreign princes, and nevertheless continue 
 to carry on their commerce, thereby sufficiently denote that 
 they remain subjects. Whatever inconveniences may attend 
 
 * Manner of Negotiating with Sovereigns, chap. vi. 
 t Bynkershoek, ubi supra, chap. x ; 
 612 

 
 IN CIVIL CASES. 491 
 
 the subjection of a minister to the sovereign with whom he BOOK iv. 
 resides, if the foreign prince chooses to acquiesce in such a cnAP ' Ym '. 
 state of things, and is content to have a minister on that 
 footing, it is his own concern ; and should his minister, on 
 any ignominious occasion, be treated as a subject, he has no 
 cause of complaint. 
 
 It may likewise happen that a foreign minister shall become 
 a subject of the sovereign to whom he is sent, by accepting 
 of a post under him : and in this case he cannot lay claim 
 to independence, except in such things alone as directly re- 
 late to his ministry. The prince by whom he is delegated, 
 in allowing of this voluntary subjection, agrees to risk the 
 inconveniences that attend it. Thus, in the last century, the 
 baron De Charnace' and the count D'Estrades were ambas- 
 sadors from France to the States General, and at the same 
 time officers in their high mightinesses' army. 
 
 The independency of a public minister is the true reason us. Im- 
 of his exemption from the jurisdiction of the country in munit 7 f 
 which he resides. No legal process can be directly issued th< ; mini f er 
 
 , , . , , . e , r ,. . ,, ,. ..* f , extends to 
 
 against him, because he is not subject to the authority of the Ua pro . 
 prince or the magistrates. But it is asked whether thatperty. 
 exemption of his person extends indiscriminately to all his 
 property ? In order to solve this question, we must consider 
 by what circumstances property may be subjected to, and by 
 what others it may be exempted from, the jurisdiction of a 
 country. In general, whatever lies within the extent of a 
 country, is subject to the authority and jurisdiction of the 
 sovereign (Book I. 205, and Book II. 83, 84). If any 
 dispute arises concerning effects or goods within or passing 
 through the country, it is to be decided by the judge of the 
 place. In virtue of this dependence, the mode of stoppage 
 or seizure has been established in many countries, for the 
 purpose of compelling a foreigner to repair to the spot where 
 the seizure has been made, and there to answer questions that 
 are to be put to him, though not directly relating to the [ 492 ] 
 effects seized. But a foreign minister, as we have already 
 shown, is independent of the jurisdiction of the country ; 
 and his personal independence in civil cases would be of 
 little avail, unless it extended te every thing which he finds 
 necessary in order to enable him to live with dignity, and 
 quietly to attend to the discharge of his functions. Besides, 
 whatever he has brought with him, or purchased for his own 
 use as minister, is so connected with his person as to partake 
 of the same fate with it. Since the minister entered the 
 territory on the footing of independence, he could not have 
 it in contemplation to subject his retinue, his baggage, or 
 his necessaries, to the jurisdiction of the country. Every 
 thing, therefore, which directly belongs to his person in the 
 character of a public minister, every thing which is intend- 
 ed for his use, or which serves for his own maintenance and 
 
 SB 613
 
 492 OF THE JUDGE OF AMBASSADORS. 
 
 BOOK iv. that of his household, every thing of that kind, I say, 
 CHAP, vnr. p ar takes of the minister's independency, and is absolutely 
 exempt from all jurisdiction in the country. Those things, 
 together with the person to whom they belong, are consi- 
 dered as being out of the country. 
 
 114. The But this exemption cannot e v xtend to such property as 
 QnofcT ev *dently belongs to the ambassador under any other rela- 
 tendtoef- ^ on ^ &n that of minister. What has no affinity with his 
 fectsbe- functions and character cannot partake of the privileges 
 longing to which are solely derived from his functions and character. 
 the 7 Sister Should a minister, therefore, (as it has often been the case,) 
 may carry embark in any branch of commerce, all the effects, goods, 
 on; money, and debts, active and passive, which are connected 
 
 with his mercantile concerns, and likewise all contests and 
 lawsuits to which they may give rise, fall under the juris- 
 diction of the country. And although, in consequence of 
 the minister's independency, no legal process can, in those 
 lawsuits, be directly issued against his person, he is, never- 
 theless, by the seizure of the effects belonging to his com- 
 merce, indirectly compelled to plead in his own defence. 
 The abuses which would arise from a contrary practice are 
 evident. What could be expected from a merchant vested 
 with a privilege to commit every kind of injustice in a foreign 
 country ? There exists not a shadow of reason for extend- 
 ing the ministerial immunity to things of that nature. If 
 the sovereign who sends a minister is apprehensive of any 
 inconvenience from the indirect dependency in which his 
 servant thus becomes involved, he has only to lay on him his 
 injunctions against engaging in commerce, an occupation, 
 indeed, which ill accords with the dignity of the ministerial 
 character. 
 
 To what we have said, let us add two illustrations : 
 1. In doubtful cases, the respect due to the ministerial cha- 
 racter requires that things should always be explained to the 
 advantage of that character. I mean that, when there is 
 room for doubt whether a thing be really intended for the 
 use of the minister and his household, or whether it belongs 
 to his commerce, the decision must be given in favour of 
 the minister: otherwise there would be a risk of violating 
 his privileges. 2. When I say that we may seize such of the 
 [ 493 ] minister's effects as have no relation to his public character, 
 particularly those that belong to his commercial concerns, 
 this is to be understood only on the supposition that the 
 seizure be not made for any cause arising from his transac- 
 tions in quality of minister, as, for instance, articles supplied 
 for the use of his family, house-rent, etc., because any claims 
 which may lie against him in that relation cannot be decided 
 in the country, and consequently cannot be subjected to its 
 jurisdiction by the indirect mode of seizure. 
 
 614
 
 IN CIVIL CASES. 493 
 
 All landed estates, all immovable property, by whomsoever BOOK iv. 
 possessed, are subject to the jurisdiction of the country CHAF " Tm - 
 (Book I. 205, and Book II. 83, 84). Are they to be $ us. nor 
 exempted from it on the single ground that their owner has * i 1111110 ^- 
 been appointed ambassador by a foreign power? There can able , p . p ! r ~ 
 
 rr *., -i T . ty which he 
 
 exist no reason for the exemption in such case. It is not in possesses in 
 his public character that the ambassador possesses that pro- the country, 
 perty ; nor is it attached to his person, so as, like himself, to ( 201 ) 
 be reputed out of the territory. If the foreign prince appre- 
 hends any ill consequences from that state of dependency in 
 which his minister may stand on account of some of his pos- 
 sessions, he may make choice of another person to fill the 
 office. Let us conclude, therefore, that immovable property 
 possessed by a foreign minister does not change its nature in 
 consequence of the character conferred on the owner, but con- 
 tinues subject to the jurisdiction of the state in which it lies. 
 All contests and lawsuits concerning that property are to be 
 carried before the tribunals of the country ; and those same 
 tribunals may decree its seizure in order to satisfy any legal 
 claim. It is, however, easily conceived, that, if the ambas- 
 sador lives in a house of his own, that house is excepted from 
 the rule, as actually serving for his immediate use ; it is 
 excepted, I mean, in whatever may affect the present use 
 which the ambassador makes of it. (201) 
 
 It may be seen, in Monsieur de Bynkershoek's treatise,* 
 that custom coincides with the principles laid down in this 
 and the preceding sections. In suing an ambassador in 
 either of the two cases just mentioned, that is to say, on 
 the subject of any immovable property lying in the country, 
 or of movable effects which have no connection with the 
 embassy, the ambassador is to be summoned in the same 
 manner as an absent person, since he is reputed to be out of 
 the country, and his independency does not permit any im- 
 mediate address to his person in an authoritative manner, 
 such as sending an officer of a court of justice to him. 
 
 By what mode, then, may satisfaction be obtained of an g lie. How 
 ambassador who refuses to do justice to those who have deal- justice may 
 ings with him ? It is asserted by many that he must be be btamed 
 sued before the tribunal to whose jurisdiction he was subject ambassador, 
 antecedently to his appointment as ambassador. In this 
 there appears to me an impropriety. If the necessity and 
 importance of his functions set him above all prosecution in 
 the foreign country where he resides, shall any man be 
 allowed to molest him in the performance of his ministerial [ 494 ] 
 duties by summoning him to appear before the tribunals of 
 his own country ? The interest of the public service forbids 
 
 (201) As to this point, and the exemption from a distress, see Novella v. Toogood, 
 1 Barn. A Cress. 554-2 ; Dowl. & Ry. 833, S. C. C. 
 
 * On the competent Judge of Ambassadors, chap. xvi. 6. 
 
 615
 
 494 OF THE AMBASSADOR'S HOUSE. 
 
 BOOK IT. such a procedure. It is absolutely necessary that the minis- 
 CHAP. YIII. j. er ghoui^ solely depend on his sovereign, to whom he be- 
 longs in a peculiar manner. He is an instrument in the 
 hand of the conductor of the nation ; and no circumstance 
 whatever ought to be permitted to divert or obstruct his ser- 
 vices. Neither would it be just that the absence of a person 
 who is intrusted with the interests of the sovereign and the 
 nation should prove detrimental to him in his private con- 
 cerns. In all countries, those who are absent on the service 
 of the state enjoy privileges which secure them from the in- 
 conveniences attendant on the state of absentees. But these 
 privileges of the ministers of the state should, as far as pos- 
 sible, be so modelled and tempered as not to be unreasonably 
 burdensome or injurious to private persons who have dealings 
 with them. How then arc those different interests the ser- 
 vice of the state and the administration of justice to be re- 
 conciled ? All private persons, whether citizens or foreign- 
 ers, who have any demands against a minister if they can- 
 not obtain satisfaction from himself should apply to his 
 master, who is obliged to do them justice in such manner as 
 may be most consistent with the public service. It rests with 
 the prince to determine whether it be most proper to recall 
 his minister, to appoint a tribunal before which he may be 
 sued, or to order an adjournment of the cause, &c. In a 
 word, the good of the state does not allow that any person 
 whatever should have it in his power to disturb the minister 
 in his functions, or to divert his attention from them without 
 the sovereign's permission; and the sovereign, whose duty 
 it is to distribute impartial and universal justice, ought not to 
 countenance his minister in refusing it or wearying out his 
 adversaries by unjust delays. 
 
 CHAP. IX. CHAP. IX 
 
 OF THE AMBASSADOR'S HOUSE AND DOMESTICS. 
 
 g 117. The THE independency of the ambassador would be very im- 
 ambasaa- perfect, and his security very precarious, if the house in 
 (202* h e ' w ^ c ^ ke lives were not to enjoy a perfect immunity, and to 
 be inaccessible to the ordinary officers of justice. The am- 
 bassador might be molested under a thousand pretexts ; his 
 secrets might be discovered by searching his papers, and his 
 
 (262) How far exempt from a dis- lord of a house tenanted by an am- 
 tress, see Novello y. Toogood, 1 Barn, bassador to tho payment of poor-rates 
 A Cres. 554, 2 Dowl. & R. 833, S. C. and taxes. a 
 Modern acts usually subject the laad- 
 616
 
 AND DOMESTICS. 494 
 
 person exposed to insults. Thus, all the reasons which es- BOOK IT. 
 tablish his independence and inviolability, concur likewise in CHAP - " . 
 securing the freedom of his house. In all civilized nations, 
 this right is acknowledged as annexed to the ambassadorial 
 character ; and an ambassador's house, at least in all the 
 ordinary affairs of life, is, equally with his person, considered 
 as being out of the country. Of this, a remarkable instance 
 occurred, not many years ago, at Petersburgh. On the 3d 
 of April, 1752, thirty soldiers, with an officer at their head, 
 entered the house of baron Greiffenheim, the Swedish minis- [ 495 ] 
 ter, and carried off two of his domestics, whom they con- 
 ducted to prison, under a pretence that those two men had 
 clandestinely sold liquors, which the imperial farm alone has 
 the privilege of selling. The court, incensed at such a pro- 
 ceeding, caused the authors of this act of violence to be im- 
 mediately taken into custody, and the empress ordered satis- 
 faction to be made to the offended minister; she likewise 
 sent to him and to all the other foreign ministers, a declara- 
 tion, in which she expressed her concern and resentment at 
 what had happened, and communicated the orders which she 
 had given to the senate to institute a prosecution against 
 the commissioner of the office established for the prevention 
 of the clandestine sale of liquors, he being the chief delin- 
 quent. 
 
 The house of an ambassador ought to be safe from all out- 
 rage, being under the particular protection of the law of 
 nations, and that of the country ; to insult it, is a crime both 
 against the state and against all other nations. 
 
 But the immunity and freedom of the ambassador's house us. Right 
 is established only in favour of the minister and his house- of asylum, 
 hold ; as is evident from the very reasons upon which it is 
 grounded. Can he take advantage of the privilege, in order 
 to convert his house into an asylum, to afford shelter and 
 protection to the enemies of the prince, and to malefactors 
 of every kind, and thus screen them from the punishments 
 which they have deserved ? Such proceedings would be con- 
 trary to all the duties of an ambassador, to the spirit by 
 which he ought to be animated, and to the lawful purposes 
 for which he has been admitted into the country. This is 
 what nobody will presume to deny. But I proceed further, 
 and lay it down as a certain truth, that a sovereign is not 
 obliged to tolerate an abuse so pernicious to his state, and so 
 detrimental to society. I grant, indeed, that when there is 
 question only of certain ordinary transgressions, and these 
 committed by persons who often prove to be rather unfortu- 
 nate than criminal, or whose punishment is of no great im- 
 portance to the peace of society, the house of an ambassador 
 may well serve as an asylum for such offenders ; and it is 
 better that the sovereign should suffer them to escape, than 
 expose the ambassador to frequent molestation under pre- 
 
 ?S 3 B 2 617
 
 495 OF THE AMBASSADORS' HOUSE. 
 
 BOOK iv. tence of a search after them, and thus involve the state in 
 CHAP, ix. anv difficulty which might arise from such proceedings. 
 And as the house of an ambassador is independent of the 
 ordinary jurisdiction, no magistrate, justice of the peace, or 
 other subordinate officer, is in any case entitled to enter it 
 by his own authority, or to send any of his people to enter 
 it, unless on occasions of urgent necessity, when the public 
 welfare is threatened with imminent danger which admits of 
 no delay. Whatever concerns a point of such weight and 
 delicacy, whatever affects the rights and the dignity of a 
 foreign power, whatever may embroil the state with that 
 power, is to be laid immediately before the sovereign, and 
 to be determined either by himself in person, or, under his 
 f 496] direction, by the privy council. Thus, it belongs to the sove- 
 reign to decide, on occasion, how far the right of asylum, 
 which an ambassador claims as belonging to his house, is to 
 be respected : and if the question relates to an offender whose 
 arrest or punishment is of great importance to the state, the 
 prince is not to be withheld by the consideration of a privi- 
 lege which was never granted for the detriment and ruin of 
 states. In the year 1726, the famous duke de Ripperda 
 having sheltered himself in the house of lord Harrington, am- 
 bassador from England, the council of Castile decided "that 
 he might be taken out of it, even by force ; since, otherwise, 
 those regulations which had been made for the purpose of 
 maintaining a more regular and intimate correspondence be- 
 tween sovereigns would, on the contrary, operate to the sub- 
 version and utter ruin of their authority ; and that, if per- 
 sons who had been intrusted with the finances, the power, 
 and the secrets of the state, were, when guilty of violating 
 the duties of their office, allowed to take shelter under a pri- 
 vilege which had been granted to the houses of ambassadors 
 in favour only of ordinary offenders, such an extension of 
 the right of asylum would be productive of consequences the 
 most pernicious and detrimental to all the powers on earth, 
 who, if the practice once became established, would be re- 
 duced to the necessity, not only of enduring the presence of 
 every man who was plotting their destruction, but even of 
 seeing him supported in their own court."* Nothing could 
 be said on this head with greater truth and judgment. 
 
 The abuse of the privilege has nowhere been carried to 
 a greater extent than at Rome, where the ambassadors of 
 crowned heads claim it for the whole ward in which their 
 house is situated. The popes, once so formidable to sove- 
 reigns, have for above two centuries been in their turn under 
 a necessity of observing the most delicate and cautious cir- 
 cumspection in their conduct towards them. It is in vain 
 that they have endeavoured to suppress, or at least to reduce 
 
 * Memoirs of the Abb6 De Montgon, vol. 1. 
 618 

 
 AND DOMESTICS. 496 
 
 within proper bounds, an abusive privilege, for which, pre- BOOK rv. 
 scription, however great its antiquity, ought not to be CHAP ' IX< 
 allowed as a sufficient plea in opposition to justice and 
 reason. 
 
 An ambassador's carriages and equipages are equally pri- g 119. Ex- 
 vileged with his house, and for the same reasons : to insult emption of 
 them is an attack on the ambassador himself, and on the *" ambassa - 
 sovereign whom he represents. They are independent of all &&* 
 subordinate authority of guards, custom-house officers, ma- 
 gistrates and their agents, and must not be stopped or 
 searched without a superior order. But in this instance, as 
 in that of the ambassador's house, the abuse is not to be con- 
 founded with the right. It would be absurd that a foreign 
 minister should have the power of conveying off in his coach 
 a criminal of consequence, a man, in the seizure of whose 
 person the state were highly interested ; and that he should 
 do this under the very eyes of the sovereign, who thus would 
 see himself defied in his own kingdom and court. Where is 
 the sovereign who would suffer this ? The marquis de Fon- 
 tenay, the French ambassador at Rome, sheltered the Neapo- 
 litan exiles and rebels, and at last undertook to convey them 
 out of Rome in his own carriages : but the carriages were 
 stopped at the city gates by some Corsicans of the pope's [ 497 ] 
 guard, and the Neapolitans committed to prison. The am- 
 bassador warmly complained of the procedure : but the pope 
 answered " that his motive had only been that of arresting 
 men whom the ambassador had assisted in escaping from con- 
 finement ; and that, since the ambassador took the liberty of 
 harbouring villains, and affording protection to every criminal 
 in the papal territory, at least he, who was sovereign of the 
 state, ought to be allowed to have them retaken wherever 
 they could be found ; as the rights and privileges of ambas- 
 sadors were not to be carried to such lengths." The ambas- 
 sador replied, "that it would not appear, on examination, that 
 he had granted an asylum to any subjects of the pope, but 
 solely to some Neapolitans, whom he might very lawfully 
 shelter from the persecutions of the Spaniards."* By this 
 answer, the minister tacitly conceded that he would not have 
 been authorized to complain of the stoppage of his carriages, 
 if he had employed them for the purpose of favouring the 
 escape of any of the pope's subjects, and aiding criminals to 
 elude the pursuit of justice. 
 
 The persons in an ambassador's retinue partake of his ? 120. of 
 inviolability ; his independency extends to every individual his retinn 
 of his household: so intimate a connection exists between ( 203 )' 
 him and all those persons, that they share the same fate with 
 
 * See Wicquefort's Ambassador, book Anne, c. 12 ; and see cases, Chitty's Col. 
 i. g 28, towards the end. Stat 13; 13 Price Rep. 805. C. 
 
 (203) Privileged from an arrest, 7 
 
 619
 
 497 OF THE AMBASSADOR'S HOUSE 
 
 BOOK iv. him ; they immediately depend on him alone, and are exempt 
 CHAP, ix. f rom ^g jurisdiction of the country, into which they would 
 not have come without such reservation in their favour. The 
 ambassador is bound to protect them ; and no insult can be 
 offered to them, which is not at the same time an insult to 
 himself. If the domestics and household of a foreign minis- 
 ter were not solely dependent "on him, it is evident at first 
 sight, how easily he might be harassed, molested, and dis- 
 turbed in the exercise of his functions. These maxims are 
 at present everywhere adopted and confirmed by custom, 
 g 121. of his The ambassador's wife is intimately united with him, and 
 wife and m0 re particularly belongs to him than any other person of 
 his household. Accordingly, she participates in his inde- 
 pendence and inviolability; she even receives distinguished 
 honours, which, in a certain degree, cannot be refused to her 
 without affronting the ambassador; and for which there 
 exists, in the generality of courts, an established ceremonial. 
 The respect due to the ambassador extends likewise to his 
 children, who also partake of his immunities. 
 
 $ 122. of the The ambassador's secretary is one of his domestics : but 
 secretary of the secretary of the embassy holds his commission from the 
 bass* 3 sovereign himself; which makes him a kind of public minis- 
 ter, enjoying in his own right the protection of the law of 
 [ 498 ] nations, and the immunities annexed to his office, independ- 
 ently of the ambassador, to whose orders he is indeed but 
 imperfectly subjected, sometimes not at all, and always in 
 such degree only as their common master has been pleased 
 to ordain. 
 
 123. of Couriers sent or received by an ambassador, his papers, 
 the ambas- letters, and despatches, all essentially belong to the embassy, 
 sador's cou- an( j are consequently to be held sacred ; since, if they were 
 despatches no * res P ec ted, the legitimate objects of the embassy could 
 not be attained, nor would the ambassador be able to dis- 
 charge his functions with the necessary degree of security. 
 The states-general of the United Provinces decided, while 
 the president Jeannin resided with them as ambassador from 
 France, that, to open the letters of a public minister is a 
 breach of the law of nations.* Other instances may be seen 
 in Wicquefort. That privilege, however, does not on cer- 
 tain momentous occasions, when the ambassador himself has 
 violated the law of nations, by forming or countenancing plots 
 or conspiracies against the state deprive us of the liberty 
 to seize his papers for the purpose of discovering the whole 
 secret, and detecting his accomplices ; since, in such an 
 emergency, the ambassador himself may lawfully be arrested 
 and interrogated ( 99). An example is furnished us in the 
 conduct of the Roman government, who seized the letters 
 
 * Wicquefort, book L \ 27. 
 620
 
 AND DOMESTICS. 498 
 
 which a treasonable junto had committed to the hands of BOOK rv. 
 Tarquin's ambassadors ( 
 
 The persons in a foreign minister's retinue, being inde- \ 124. The 
 pendent of the jurisdiction of the country, cannot be taken J^* 8 * 1 ^ 
 into custody or punished without his consent. It would, ri y s ov e r " 
 nevertheless, be highly improper that they should enjoy an bis retinue, 
 absolute independence, and be at liberty to indulge in every 
 kind of licentious disorder, without control or apprehension. 
 The ambassador must necessarily be supposed to possess 
 whatever degree of authority is requisite for keeping them in 
 order :* and some writers will have that authority to include 
 even a power over life and death. When the marquis de 
 R6ny, afterwards duke De Sully, was in England as ambas- 
 sador extraordinary from France, a gentleman of his retinue 
 committed a murder, which caused a great noise among the 
 people of London. The ambassador assembled some French 
 noblemen who had accompanied him on his mission, tried the 
 murderer, and sentenced him to lose his head. He then ac- 
 quainted the lord mayor of London that he had pronounced 
 sentence on the criminal, desiring that magistrate to furnish 
 him with an executioner and proper attendants to have the 
 punishment inflicted. But he afterwards consented to de- 
 liver up the criminal to the English, in order that they might [ 499 ] 
 execute justice on him as they thought proper : and Monsieur 
 De Beaumont, the French ambassador in ordinary, prevailed 
 on the British monarch to pardon the young man, who was 
 related to that minister by the ties of consanguinity, f It 
 rests entirely at the option of the sovereign to invest his am- 
 bassador with such an extensive power over the persons of his 
 suite : and the marquis de Kony was confidently certain of 
 having his conduct approved by his master, who did, in fact, 
 express his approbation of the whole transaction. In gene- 
 ral, however, it is to be presumed that the ambassador is 
 possessed only of a coercive power sufficient to restrain his 
 dependants, by other punishments which are not of a capital 
 or infamous nature. He may punish the faults committed 
 against himself and against his master's service, or send the 
 delinquents to their sovereign, in order to their being pun- 
 ished. But should any of his people commit crimes against 
 society, which deserve a severe punishment, the ambassador 
 
 * It is his duty to watch over their mediate an accommodation between 
 conduct, and to exert his authority in Charles I. and his parliament, several 
 order to prevent them from transgress- gentlemen of that minister's suite re- 
 ing the bounds of their station, and paired to the royal army, and fought 
 committing actions which may give against the parliamentarians ; on which 
 just offence to the sovereign at whose account the parliament immediately 
 court he resides, an event which may declined all further negotiation with 
 sometimes be productive of very se- the count De Harcourt. Duport's Hist. 
 rious and disagreeable consequences, of Conspir. vol. iv. p. 261. Edit. A. D. 
 The French court having sent the 1729. 
 
 count De Harcourt to England to ( Bully's Memoirs, vol. vi. chap. i. 
 
 621
 
 499 OF THE AMBASSADOR'S HOUSE 
 
 BOOK iv. ought to make a distinction between such of his domestics as 
 CHAP> IX> belong to his own nation, and others who are subjects of the 
 country where he resides. The shortest and most natural 
 way with the latter, is to dismiss them from his service, and 
 deliver them up to justice. As to those of his own nation, if 
 they have offended the sovereign of the country, or committed 
 any of those atrocious crimes in whose punishment all nations 
 are interested, and whose perpetrators are, for that reason, 
 usually surrendered by one state when demanded by an- 
 other, why should he not give them up to the nation which 
 calls for their punishment ? If the transgression be of a dif- 
 ferent kind, he is to send them to his sovereign. Finally, if 
 the case be of a doubtful nature, it is the ambassador's duty 
 to keep the offender in irons till he receives orders from his 
 court. But if he passes a capital sentence on the criminal, I 
 do not think he can have it executed in his own house; an 
 execution of that nature being an act of territorial superiority 
 which belongs only to the sovereign of the country. And 
 although the ambassador, together with his house and house- 
 hold, be reputed out of the country, that is nothing more 
 than a figurative mode of speech intended to express his in- 
 dependency, and all the rights necessary to the lawful suc- 
 cess of the embassy : nor can that fiction involve privileges 
 which are reserved to the sovereign alone, which are of too 
 delicate and important a nature to be communicated to a fo- 
 reigner, and, moreover, not necessary to the ambassador for 
 the due discharge of his functions. If the offence has been 
 committed against the ambassador or against the service of 
 his master, the ambassador may send the delinquent to his 
 sovereign. If the crime concerns the state where the minis- 
 ter resides, he may try the criminal, and, if he finds him 
 [ 500 ] worthy of death, deliver him up to the justice of the country, 
 
 as did the marquis de R6ny. 
 
 1 125. When When the commission of an ambassador is at an end, 
 the rights wnen ne has concluded the business for which he came into 
 bLsadoi- 1 ' ^6 coun t r y > when he is recalled or dismissed, in a word, 
 expire. when he is obliged to depart on any account whatever, his 
 functions cease : but his privileges and rights do not imme- 
 diately expire : he retains them till his return to his sove- 
 reign, to whom he is to make a report of his embassy.* His 
 safety, his independence, and his inviolability are not less 
 necessary to the success of the embassy in his return, than 
 at his coming. Accordingly, when an ambassador departs 
 on account of a war arising between his master and the sove- 
 reign at whose court he was employed, he is allowed a suffi- 
 
 * " It was at that time," says Join- them happened to die, the ambassadors 
 
 Tille, "an established custom, as well in whom they had mutually sent to each 
 
 pagan as in Christian countries, that, other remained prisoners and slaves." 
 
 when two princes were at war, if one of p. 72, edit. A. D. 1797. 
 622
 
 AND DOMESTICS. 500 
 
 cient time to quit the country in perfect security : and, BOOK iv. 
 moreover, if he was returning home by sea, and happened to CHAP - "_ 
 be taken on his passage, he would be released without a mo- 
 ment's hesitation, as not being subject to lawful capture. 
 
 For the same reasons, the ambassador's privileges still 126. Cases 
 exist at those times when the activity of his ministry happens when n f w 
 to be suspended, and he stands in need of fresh powers. credentials 
 Such a case occurs in consequence of the death of the prince l^ 
 whom the minister represents, or of the sovereign at whose 
 court he resides. On either occasion it becomes necessary 
 that the minister should be furnished with new credentials. 
 The necessity, however, is less cogent in the latter than in 
 the former case, especially if the successor of the deceased 
 prince be the natural and necessary successor; because, 
 while the authority whence the minister's power emanated 
 still subsists, it is fairly presumable that he retains his for- 
 mer character at the court of the new sovereign. But if his 
 own master is no more, the minister's powers are at an end ; 
 and he must necessarily receive fresh credentials from the 
 new prince, before he can be authorized to speak and act in 
 his name. In the interim, however, he still continues to be 
 the minister of his nation, and, as such, is entitled to enjoy 
 all the rights and honours annexed to that character. 
 
 At length, I have reached the end of my proposed career, g 127. Con- 
 I do not flatter myself with the idea of having given a per- elusion, 
 feet, full, and complete treatise of the law of nations ; nor 
 was that, indeed, my design ; for it would have been too 
 great a degree of confidence in my own abilities to have 
 made such an attempt on a subject so extensive and so co- 
 pious. I shall think I have done a great deal, if my princi- 
 ples are approved as solid, luminous, and sufficient to enable 
 intelligent persons to give a proper solution on any minute 
 questions that may arise in particular cases ; and shall be 
 happy if the result of my labours proves in anywise service- 
 able to those men in power who love mankind and respect 
 justice, and furnishes them with weapons for the purpose 
 of defending the cause of right, and compelling the unjust 
 to observe at least some measures, and to keep within the 
 bounds of decency. 
 
 623
 
 INDEX. 
 
 ABSENCE. See COUNTRY. 
 
 of the right of individuals to quit their 
 country, 103, <fcc. 
 
 AGREEMENT. See TREATY, CONVEN- 
 TIONS. 
 
 ALIEN ENEMY, 323. See ENEMY. 
 
 ALIENAGE, 176. See FOREIGNER. 
 
 ALIENATION, 
 
 of public property, 116. See PRO- 
 PERTY. 
 ALLEGIANCE, 
 
 obligations of, 6, in note. 
 
 of subject to a sovereign, 21. 
 
 ALLIANCE. See TREATY. 
 treaty of, 192, 323, 324. 
 subject of, considered, ib. 
 
 ALLUVION. See RIVERS. 
 of the right to, 121. 
 distinction between, and avulsion, ib. 
 
 ALLY. See ENEMY, WAR. 
 
 AMBASSADOR, 
 
 who, 459. 
 
 are ordinary or extraordinary, ib. 
 
 representative character of, ib. 
 
 rights, privileges, and immunities of, 464. 
 See MINISTER. 
 
 may annul a treaty, 459, n. (192). 
 
 duty of, when consul of friendly state re- 
 jected, ib. 
 
 children of and attendants, though born 
 in foreign state, considered as natu- 
 ral-born subjects, ib. 
 
 right of, to grant passports, ib. 
 
 right of, to restoration of despatches when 
 captured by an enemy, ib. 
 
 protected and favoured by the law of 
 nations, ib. 
 
 79 
 
 AMBASSADOR (continued). 
 
 privileges of, and servants from arrest, 
 
 459, n. (192). 
 when compelled to give security for costs, 
 
 ib. 
 
 right of, in civil cases, 488. 
 is exempt from civil jurisdiction where 
 
 resident, 488, 489. 
 cause of this exemption, ib. 
 may voluntarily subject himself to it, 489, 
 
 490. 
 
 may commence a civil suit, 490. 
 but should not institute a criminal one, ib. 
 when a subject of state where employed, 
 
 ib. 
 when or not subject to its jurisdiction, 
 
 490, 491. 
 
 property of, also exempt, 491, 492. 
 when otherwise, 492. 
 not liable to claims arising from duties 
 
 of office, ib. 
 immovable property of, not exempt, 493, 
 
 and n. (201). 
 when exempt from distress, 493, and n. 
 
 (201), 495, and n. (202). 
 proceedings against property not exempt, 
 
 493, 494. 
 
 house and domestics of, 494. 
 to enjoy a perfect immunity, 494, 495. 
 how far exempt from distress, 495, n. 
 
 (202), 493, n. (201). 
 how far subject to poor-rates and taxes, 
 
 495, n. (202). 
 
 his right of asylum, 495, 496. 
 limitation thereof, ib. 
 exemption of ambassadors' carriages, 
 496. 
 
 of their retinue, 497, n. (203). 
 of wife and family of, 497. 
 of secretary of ambassador, ib. 
 of their couriers and despatches, 
 
 498. 
 3C 625
 
 626 
 
 INDEX. 
 
 AMBASSADOR (continued). 
 
 authority of, over retinue, 498, and n. j- 
 
 499. 
 
 duty of, with respect to, 498, 499. 
 when rights of, expire, 500. 
 new credentials, when necessary, ib. 
 
 AMNESTY. See PEACE. 
 
 what, 439. 
 
 an oblivion of the past, ib. 
 
 implied in every treaty of peace, ib. 
 
 to rebels, 423, 426. 
 ANTICIPATION, 
 
 what, 114. 
 
 right of, in the use of common property, 
 
 ib. See PROPERTY. 
 ARBITRATION, 
 
 what, 20, 277. 
 
 between sovereign and subjects, 20. 
 
 between nations, 277. 
 
 general obligations of arbitrators' deci- 
 sion, ib. 
 
 when not binding, 277, 278. 
 
 conferences and congresses, 278. 
 
 congress, what, ib. 
 
 ARISTOCRATIC REPUBLIC. See Go- 
 
 YERNMENT. 
 
 what, 2. 
 
 empire intrusted by nation to a certain 
 number of citizens, ib. 
 
 ARMY. See WAR. 
 
 right of levying troops, 294. 
 
 enlistment of troops, 294, 298. 
 
 soldiers' pay and quarters, 296. 
 
 standing armies, 296, 314. 
 
 mercenary soldiers, 297. 
 
 obligation of soldiers, 299. 
 
 punishment of deserters, t'6. 
 
 military laws, t'6. 
 
 military discipline, t'6. 
 
 officers of, 299, 300, 301. 
 ARREST, 
 
 ambassador privileged from, 459, and n. 
 See AMBASSADOR. 
 
 consul not exempt from, 147, and n. (101), 
 459, and n. (192). 
 
 on foreign contract here, though arrest 
 not permitted where contract made, 
 173, and n. (111). 
 ASSASSINATION, 
 
 what, 359. 
 
 of prisoners, 358, 360, 361. See PRI- 
 SONERS. 
 ASSEVERATION, 
 
 use of, in treaties, 233. See TREATY. 
 ASSOCIATE, 
 
 of the enemy, 328. See ENEJCT. 
 AUXILIARIES, 
 
 what, 324. See Eramr. 
 
 AVULSION, 
 
 what, 121. See RIVERS, STREAMS, and 
 
 LAKES. 
 distinction between, and alluvion, 121. 
 
 BANISHMENT. See EXILE. 
 
 distinction between, and exile, 107. 
 
 banishment, what, ib. 
 
 for .what time, ib. 
 
 when party said to be banished, t'6. 
 
 inflicted as a punishment, t'6. 
 
 is a mark of infamy, t'6. 
 
 how far right of, extends, t'6. 
 
 right of banished party to live somewhere, 
 
 108. 
 
 though right only an imperfect one, t'6. 
 nations may refuse him admittance, t'6. 
 but not without good reasons, t'6. 
 duty of nations towards him, t'6. 
 cannot punish him for offences committed 
 
 out of their territories, 109. 
 except for safety of mankind, t'6. 
 
 BAY, 129, 130. See SEA. 
 
 BILL OF EXCHANGE. 
 
 construction of, in this country, 173, n. 
 
 (111), 
 effect of English Statute of Limitations, ib. 
 
 BLOCKADE, 
 
 what, 339, and n. (159). 
 
 of the violation of, i'6. 
 
 distinction between military and commer- 
 cial blockade, t'6. 
 
 three things necessary to constitute a 
 violation of, t'6. 
 
 1. The existence of an actual block- 
 
 ade, t'6. 
 
 2. The knowledge of the party sup- 
 
 posed to have violated it, t'6. 
 
 3. Some act of violation, t'6. 
 
 BOOTY, 
 
 what, 365. 
 
 distinction between, and conquest, t'6. 
 See ENEMY. 
 
 CAPITULATION. See WAR. 
 what, 412, 413. 
 how concluded, t'6. 
 
 necessity for observing terms of, 414. 
 instances, 415. 
 
 duty of sovereigns to see them fulfilled, 
 414. 
 
 CAPTURE. See WAR. 
 
 CASUS FCEDERIS, 
 what, 326. 
 only takes place where war unjust, 326, 
 
 330. 
 
 how it exists in a defensive war, 326. 
 in a treaty of guaranty, t'6.
 
 INDEX. 
 
 62T 
 
 CELIBACY. See POPERY. 
 
 of priests considered, 69, 70. 
 
 its effects, ib. 
 CHILDREN, 
 
 of citizens born in a foreign country, 102, 
 n. (59). See CITIZEN. 
 
 born at sea, 102. See SEA. 
 
 born in armies of state, 103. 
 
 in the house of minister at foreign court, 
 459, and n. (192). See COUNTRY. 
 
 of vagrants, 103. See VAGRANT. 
 
 CHRISTIANITY. See RELIGION. 
 
 law of nations construed by, n. (1). 
 
 CHURCH. See ECCLESIASTICS, RELI- 
 GION. 
 
 the sovereign's authority over, 62. 
 
 necessity of acknowledging him to be 
 head of, 66. 
 
 of taxing church possessions, 72, 73. 
 
 should be the first appropriated to the 
 use of the state, 73. 
 
 why should bo so, ib. 
 
 misappropriation of revenues of, ib, 
 
 CITIZEN. See COUNTRY, NATION. 
 who are citizens, 101. 
 are members of the civil society, ib. 
 children of, born abroad, are citizens, 102, 
 
 and n. (59). 
 
 right of, to quit their country, 103-105. 
 duty of, in advancing glory of their coun- 
 try, 92. 
 right of, to protection, 5, 6, n. (15). 95. 
 
 See NATION. 
 right of, when the nation submits to a 
 
 foreign power, 94. 
 interest of a nation in the conduct of her 
 
 citizens, 161. 
 duty of sovereign to revenge injuries of, 
 
 161, 162. 
 
 his duty to protect, 162. 
 to prevent them offending citizens of 
 
 other nations, ib. 
 acts of individuals not to be imputed to 
 
 the nation, ib. 
 otherwise, if ratified, ib. 
 conduct of injured party, ib. 
 may punish aggressor, ib. 
 duty of aggressor's sovereign herein, 
 
 163. 
 
 should enforce reparation, ib. 
 when should deliver up offender, ib. 
 sovereign refusing justice becomes a party 
 
 to the wrong, ib. 
 nation may be guilty of her citizens' 
 
 crimes, when, 164, and n. (106). 
 duty of citizens in supporting glory of 
 
 their nation, 91. 
 
 CIVIL WAR. 
 
 what, 422, 424. 
 
 distinction between, and rebellion, 424. 
 
 CIVIL WAR (continued). 
 
 sovereign's right against rebels, 422. 
 public commotion, insurrection, and sedi- 
 tion, ib. 
 
 meaning thereof, ib. 
 sovereign, how to suppress them, ib. 
 of amnesty to offenders, 423, 426. 
 sovereign's obligation to perform his pro- 
 mises to rebels, 423. 
 effects of civil war, 425, 426. 
 produces two independent parties, 425. 
 each bound to observe the laws of war, ib. 
 consequences of not observing them, 425 
 
 to 427. 
 
 exception from amnesty in case of sub- 
 jection, 426. 
 
 interference of foreign nations, 427. 
 may interfere to restore peace, ib. 
 when may assist either party, ib. 
 CLERGY. See ECCLESIASTICS, RELIGION. 
 CODE. 
 
 no general international code, Iv. in note. 
 ancient codes on parts of the law of na- 
 tions, ib. 
 
 as to the maritime law, ib. 
 but these imperfect, ib. 
 COLONIES. See COUNTRY. 
 establishment of, 101. 
 relation of, to mother country, ib. 
 commerce with, 42, and note. 
 COMMERCE, 
 what, 37, 43. 
 
 home and foreign trade, 37. 
 utility of the home trade, ib. 
 
 of the foreign trade, ib. 
 obligation to cultivate, 37, 143, 144. 
 foundation of the laws of, 37, 143. 
 right of buying and selling, 38, 144. 
 distinction between these rights, 38. 
 right of buying imperfect, 39, 145. 
 moral obligation herein, 38, and n. 36. 
 prohibition of foreign merchandise, 39. 
 each state may prohibit entrance of, 39, 
 
 and n. (37), 144. 
 
 or choose how far it will engage in com- 
 merce, 39, 144. 
 
 Of freedom of trade, 144, and n. (97). 
 commerce with colonies of parent state, 
 
 40. 
 right to foreign trade, how acquired, 41, 
 
 145. 
 necessity of commercial treaties, 40, 145. 
 
 See COMMERCIAL TREATIES. 
 laws relating to commerce not subject to 
 
 prescription, 40. 
 
 so of rights founded on treaty, 41. 
 exceptions thereto, 42. 
 Of monopoliet, ib. 
 generally unlawful, ib. 
 right of sovereign to grant, when, ib. 
 suppression of, when, 116.
 
 628 
 
 INDEX. 
 
 COMMERCE (monopolies continued). 
 
 of commercial companies how far bene- 
 ficial, 142. 
 
 of foreign monopolies, 42, and note. 
 Of the balance of trade, 43. 
 government should encourage advan- 
 tageous trade, ib. 
 
 should lay restraints where disadvan- 
 tageous, 43, and n. (42). 
 what an advantageous trade, 43. 
 what a ruinous trade, ib. 
 of import duties, ib. 
 COMMERCIAL TREATIES. See COM- 
 
 MERCE. 
 
 necessity of, 40. 
 
 rule respecting commercial treaties, 145. 
 
 duty of nations in making them, 147. 
 
 duration of, 145. 
 
 revocation of, 146. 
 
 distinctions as to, ib. 
 
 of granting right to third party contrary 
 to treaty, 146. 
 
 of abridging commerce in favour of an- 
 other nation, ib. 
 
 or of appropriating a particular branch 
 
 of trade, 147. 
 COMPROMISE. See NATION. 
 
 what, 276. 
 CONDEMNATION. See PRIZE COURT. 
 
 sentence of, 166. 
 
 requisites of, ib. 
 
 necessity of, to complete title to capture, 
 166, 385, and notes. 
 
 CONGRESS, 
 what, 278. 
 
 CONQUEST, 
 what, 365. 
 distinction between, and booty, ib. 
 
 CONSCIENCE. 
 
 law of, the law of nations, Iviii. to be. 
 
 See LAW OP NATIONS. 
 liberty of, in religion, 56, 61. See RE- 
 LIGION. 
 
 CONSTITUTION. See STATE. 
 what, 8. 
 
 right of nation to change, 10. 
 legislature cannot, ib. 
 
 CONSULS, 
 who, 147. 
 appointment of, ib. 
 right to appoint should be stipulated for, 
 
 ib. 
 must not be subjects of state where they 
 
 reside, 148. 
 
 are accountable to their sovereign, ib. 
 when entitled to the protection of the law 
 
 of nations, ib. 
 exemption from criminal justice when, 
 
 ib. 
 
 CONTRABAND GOODS, 
 what, 337. 
 seizure and confiscation of, 337, 338. 
 
 CONTRACT, 
 
 construction of foreign contracts, 173, n. 
 
 enforcement of, ib. 
 
 arrest here on contract, though not per- 
 
 mitted in country where made, ib. 
 invalidity of, when in favour of alien 
 enemy, 414. 
 
 CONTRIBUTIONS. See ENEMY. 
 what, 366. 
 of the right to levy, ib. 
 
 CONVENTION. See TREATY. 
 what, 218. 
 
 of those made by sovereigns, ib. 
 by subordinate powers, ib. 
 who are subordinate powers, ib. 
 when made in the name of the sovereign, 
 
 ib. 
 
 or by virtue of their office, ib. 
 power to make, how acquired, ib. 
 by public persons without sufficient 
 
 powers, 219. 
 when or not valid, ib. 
 of tacit or express ratification thereof, ib, 
 of an agreement called sponsio, ib. 
 foundation of, 219, 220. 
 state not bound by, 220. 
 to what promisor is bound, when it is 
 
 disavowed, 220 to 223. 
 to what the sovereign is bound, 223 to 
 
 226. 
 
 private contracts of sovereign, 226. 
 subject to same rules as those of private 
 
 persons, ib. 
 contracts made by sovereign with private 
 
 persons in name of state, ib. 
 are binding on a nation and his succes- 
 sors, 227. 
 
 debts of the sovereign and state, ib. 
 donations of the sovereign, 228. 
 restriction and revocation of, t'6. 
 of conventions during war, 404. See 
 
 WAR. 
 of conventions relating to ransom of 
 
 prisoners, 419. See RANSOM. 
 
 CONVENTIONAL LAW. See TREATY. 
 what, Lsiv. 
 
 binds only the contracting parties, Ixv. 
 and n. 
 
 CONVENTS. See POPERY. 
 
 CORPORATION, 
 property of, 113. 
 
 See PROPERTY. 
 
 right of, to alienate same, 113, 114. 
 sovereign's power over, 113. 
 members of, 114. 
 right of, to make regulations, ib. 
 

 
 INDEX. 
 
 629 
 
 CORPORATION (continued). 
 
 obligation of, to preserve corporate pro- 
 perty, 115. 
 
 expenses of, and how borne, t'6. 
 COUNTRY, 
 
 what, 53, 101, 103. 
 
 how understood in the law of nations, 54. 
 love of country, 52, 103. 
 in individuals, 53. 
 in the nation and sovereign, ib. 
 injury to, 54. 
 
 possession of by a nation, 98. 
 exclusive right thereto, ib. 
 comprehends two things, ib. 
 right of domain and empire, 98, 99. 
 acquisition of sovereignty in a vacant 
 
 country, 99. 
 empire over, acquired with domain, ib. 
 
 another mode of acquiring it, ib. 
 how a nation may appropriate to itself 
 
 a desert country, ib. 
 must be by possession, ib. 
 of possession where occupied by a few 
 
 wandering tribes, 99, 100, 101. 
 of colonies, 101. 
 become a part of the mother country, 
 
 ib. 
 
 Of the several things relating to country, ib. 
 citizens, who are, ib. 
 natives, who are, ib. 
 children born of citizens, their rights, 
 
 ib. 
 
 of foreigners, ib. 
 inhabitants, who are, 102. 
 distinguished from citizens, ib. 
 of foreigners permitted to settle there, 
 
 ib. 
 
 their duty to defend the state, ib. 
 enjoy only the advantages given by 
 
 the law, Ac., ib. 
 perpetual inhabitants, who, ib. 
 their rights, ib. 
 
 rights of, pass to their posterity, ib. 
 Naturalization, what, 102, and n. 58. 
 by whom granted, 102. 
 jf imperfect naturalization, ib. 
 of naturalization by birth, ib. 
 in England and Poland, ib. 
 Children of citizens born in a foreign country, 
 
 ib. 
 Children born at sea, ib. 
 
 when in parts belonging to the nation, 
 
 ib. 
 
 on the open sea, 16. 
 vessels of a nation a part of its territory, 
 
 ib. 
 children born therein, born within its 
 
 territory, ib. 
 otherwise, if born in foreign vessel, 
 
 Ac., ib. 
 
 unless in a port belonging to their own 
 nation, ib. 
 
 COUNTRY (children continued). 
 
 Children born in the armies of the state, 103. 
 
 are born in the country, ib. 
 
 so if born in the house of its minister 
 
 at a foreign court, 103. 
 Settlement, ib. 
 
 what, ib. 
 
 is a fixed residence in any place, with 
 intent of always staying there, ib. 
 
 how established, ib. 
 
 may transfer his settlement, ib. 
 
 how distinguished from habitation, ib. 
 
 of natural or original settlement, ib. 
 
 of acquired settlement, t'6. 
 Vagrants, ib. 
 
 who are, t'6. 
 
 are people who have no settlement, t'6. 
 
 children of, have no country, t'6. 
 
 when country of, that of parent, t'6. 
 When a party may quit his country, 103, 
 104. 
 
 in general has a right to do so, 104. 
 
 as on arriving at years of discretion, ib. 
 
 must not endanger its welfare, t'6. 
 
 distinction between internal and ex- 
 ternal obligation, t'6. 
 
 should not quit, except from necessity, 
 t'6. 
 
 of abandoning country at a time of 
 danger, t'6. 
 
 right of country to punish, t'6. and n. 
 Of temporary absence from, 105. 
 
 right thereto in time of peace, t'6. 
 
 return when public interest requires it, 
 t'6. 
 
 variation in political laws herein, t'6. 
 
 these laws must be observed, t'6. 
 
 when passports requisite, t'6. 
 Cases where a citizen has a right to quit his 
 country, ib. 
 
 when he cannot procure subsistence 
 there, ib. 
 
 where body of society fail to dis- 
 charge their obligations towards 
 him, t'6. 
 
 or attempt to enact laws he is not 
 bound to submit to, 106. 
 
 instances herein, t'6. 
 
 where only one religion allowed, 106, 
 57. 
 
 where popular state wish to have a 
 sovereign, 106, 11. 
 
 or to submit to a foreign power, 106, 
 
 94. 
 Emigrants, 106. 
 
 who are, t'6. 
 
 sources of right to emigrate, t'6. 
 
 is a natural right, t'6. 
 
 or arising from a fundamental law of 
 the state, t'6. 
 
 or from a voluntary grant to the sove- 
 reign, t'6. 
 
 3c2
 
 INDEX. 
 
 COUNTRY (emigrants continued). 
 
 by treaty from foreign power, 106. 
 
 on account of religion, ib. 
 
 or where one state refuses to receive 
 those of another, 106, 107. 
 
 right to emigrate, how infringed, 107. 
 Supplicants, ib. 
 
 who are, ib. 
 Exile and Banishment from, ib. 
 
 who an exile, ib. 
 
 one driven from place of settlement, 
 but without a mark of infamy, ib. 
 
 banishment what, ib. 
 
 p, like expulsion with mark of infamy, 
 107, and note. 
 
 time of, 107. 
 
 distinction between exile and banish- 
 ment, ib. 
 
 exile sometimes a punishment, ib. 
 
 banishment always one, ib. 
 
 exile is either voluntary or involuntary, 
 107, 108. 
 
 voluntary when to escape punishment, 
 107. 
 
 involuntary when the effect of a supe- 
 rior order, 108. 
 
 limit of, as to place, ib. 
 
 exiled and banished man has a right to 
 live somewhere, ib. 
 
 nature of this right, ib. 
 is of an imperfect kind, ib. 
 
 right of nations to refuse him admit- 
 tance, ib. 
 
 duty of nations towards him, t'6. 
 
 cannot deprive him of necessaries, ib. 
 
 or punish for faults committed out of 
 their territories, 109. 
 
 unless they affect the safety of man- 
 kind, ib. 
 
 of the delivery up of offenders, 109, and 
 
 note. 
 COURT OF HONOUR, 
 
 establishment of, proposed, 85, 86. 
 
 COURTS OF JUSTICE. See JUSTICE. 
 
 establishment of, 78, 79. 
 CREDENTIALS. See MINISTER. 
 
 what, 461. 
 
 when new credentials necessary, 500. 
 CULTIVATION, 
 
 utility of tillage, 34. 
 
 advantages of, as a source of wealth, ib. 
 
 regulations necessary in respect of, ib. 
 
 distribution of land, ib. 
 
 protection of husbandmen, 35. 
 
 should be placed in an honourable light, 
 ib. 
 
 cultivation of the soil a natural obligation, 
 ib. 
 
 of public granaries, 36. 
 
 propriety of establishment of, ib. 
 
 management of, ib. 
 
 CURRENT OF RIVERS, 
 
 works tending to obstruct, unlawful, 122. 
 of preventing alteration in, 122, note, 
 right to soil on change of, 121, 122. 
 
 CUSTOMARY LAW, 
 what, Pref. Ixv. 
 how far binding, ib. 
 foundation and extent of, ib. 
 general obligation of, ib. 
 consent to, when presumed, Ixvi. 
 
 DEGRADATION, 
 
 suggestions as to, to prevent duelling, 86. 
 
 DFiMOCRACY. See GOVERNMENT. 
 what, 2. 
 empire kept by body of nation in its own 
 
 hands, ib. 
 also called a popular government, ib. 
 
 DESERTERS, 
 
 punishment of, 299. 
 
 DOMAIN. See COUNTRY, PROPERTY. 
 
 of the right of, 183. See OBLIGATIONS 
 AND RIGHTS. 
 
 DONATION, 
 
 of the sovereign, what, 228. 
 distinction between, and debts of, ib. 
 should be with a view to public welfare, 
 
 ib. 
 
 revocation of, ib. 
 immunities and privileges in nature of, 
 
 ib. 
 revocation of, ib. 
 
 DUELLING, 
 
 condemned, 84. 
 
 means of putting a stop to this disorder, 
 
 84 to 86. 
 
 suggestions respecting, 84, 85. 
 of establishing a Court of Honour, 85, 
 
 86. 
 
 ECCLESIASTICS. Set RELIGION. PO- 
 PERY. 
 
 of the sovereign's authority over, 63, 64. 
 
 nature of this authority, 64. 
 
 role to be observed with respect to, ib. 
 
 should be subject to the public power, ib. 
 
 the sovereign's duty towards them, ib. 
 
 their duty to the state, ib. 
 
 reasons establishing sovereign's right 
 over, 64, 65. 
 
 authorities and examples, 65. 
 
 pernicious consequences of a contrary 
 opinion, ib. 
 
 abuses therefrom particularized, 65, 66. 
 
 ELECTIVE STATE, 
 what, 23. 
 the right of choosing successor on death 
 
 of sovereign, ib. 
 elective kings, real sovereigns, 24.
 
 INDEX. 
 
 EMBASSY, 
 
 right of, what, 452. 
 
 of sending and receiving public minis- 
 ters, ib. 
 
 of the necessity thereof, ib. 
 done by the agency of public ministers, ib. 
 explanation of term minister, 453. 
 of the right of sovereigns to send and 
 
 receive public ministers, t'6. 
 right not taken away by unequal alliance, 
 
 ib. 
 
 or by a treaty of protection, t*6. 
 right of princes and states herein, ib. 
 cities that have the right of banner, 454. 
 of ministers of viceroys, 455. 
 right of regents during an interregnum, 
 
 ib. 
 molestation in exercise of right, an injury, 
 
 ib. 
 what allowable in this respect in time of 
 
 war, 455, 456. 
 minister of friendly power to be received, 
 
 456. 
 
 of resident ministers, t'6. 
 how ministers of an enemy to be admit- 
 ted, 457. 
 
 from a usurper, when, 457, 458. 
 instances herein, ib. 
 EMIGRANT. See COUNTRY. 
 who are emigrants, 106. 
 right to emigrate, 106, 33. 
 sources of their right, 106. 
 
 from law of nature, ib. 
 
 or fundamental law of the state, t'6. 
 
 from voluntary grant of sovereign, 
 t'6. 
 
 or from treaty with foreign power, 
 
 ib. 
 infringement of their right, 107. 
 
 remedy for that infringement, t'6. 
 ENEMY, 
 
 Who it an enemy, 321, and note, 
 distinction between public and private 
 
 enemy, 321. 
 
 all subjects of two states at war are ene- 
 mies, t'6. 
 
 and continue so in all places, t'6. 
 except in a neutral state, t'6. 
 women and children are enemies, 321, 
 
 351. 
 
 how to be treated, 321, 362. 
 in case of sovereigns, 363. 
 Of things belonging to the enemy, 322. 
 belong to the nation at large, t'6. 
 continue such everywhere, t'6. 
 when otherwise, t'6. 
 neutral things found with enemy not o, 
 
 t6. 
 lands possessed by foreigners in enemy's 
 
 country, t'6. 
 things due to the enemy by a third 
 
 party, 322, 323. 
 
 ENEMY (continued). 
 
 Of the enemy's allies, 323. 
 treaties of alliance in war, 323, 324. 
 defensive and offensive treaties, 324. 
 several kinds of, 323, 324. 
 difference between warlike associations 
 
 and auxiliary treaties, 324. 
 auxiliary troops, what, t'6. 
 subsidies, what, t'6. 
 treaties respecting, t'6. 
 when a nation allowed to assist another, 
 
 t'6. 
 
 general principle herein, t'6. 
 when to make alliances for war, 324-5. 
 of alliances made with nation actually 
 
 engaged in war, 325, 333. 
 alliances in time of peace, 325, 333. 
 tacit clause in every alliance, 325. 
 refusing succours when no breach of 
 
 alliance, 326. 
 casus foederis, what, t'6. 
 never takes place in an unjust war, 326, 
 
 330. 
 
 how it exists in a defensive one, 326. 
 or in a treaty of guarantee, t'6. 
 of granting or refusing succours, 326, 
 
 327. 
 of two parties in alliance coming to a 
 
 rupture, 327. 
 
 duty of third party herein, t'6. 
 of the enemy's associates, 328. 
 who deemed such, 328 to 331. 
 those who make common cause with him, 
 
 are, 328. 
 or assist him, without being obliged to it 
 
 by treaties, t'6. 
 or are in an offensive alliance with him, 
 
 329. 
 how a defensive alliance associates with 
 
 the enemy, t'6. 
 in what case it does not produce the same 
 
 effect, 329, 330. 
 whether necessary to declare war against 
 
 enemy's associates, 331. 
 Of the right over things belonging to the ene- 
 my, 364. See WAR. 
 Of levying contributions on enemy's country, 
 
 366. See WAR. 
 Of faith between enemies, 371. See WAK. 
 
 ENLISTMENT, 
 of troops, 294. 
 in foreign countries, 298. 
 
 ENVOY, 
 
 who, 460. 
 
 rank of, t'6. 
 
 are ordinary and extraordinary, t'6. 
 
 the latter held in greater consideration, 
 
 t'6. 
 EQUITY, COURT OF, 
 
 bill in, to enforce treaty, not sustainable, 
 T. in note.
 
 632 
 
 INDEX. 
 
 ESCHEATAGE, 
 
 what, 176, and note, 
 doctrine of, 16. 
 
 EXCHANGE. See MONEY AND EXCHANGE. 
 of money, what, 47. 
 a custom of merchants for remitting 
 
 money, ib. 
 
 should be supported by good laws, ib. 
 duty of nations herein, ib. 
 
 EXCOMMUNICATION. See POPERY. 
 abuse of the Pope's power herein, 73. 
 of men in office, ib. 
 of sovereigns, ib. 
 instances of abuse, 74. 
 abuses not confined to Popes, ib. 
 instances hereof, 74, 75, in note. 
 
 EXEMPTION, 
 
 from carrying arms, 295. 
 
 EXILE. See BANISHMENT. 
 who an exile, 107. 
 
 distinction between, and banishment, ib. 
 one driven from place of settlement, ib. 
 but without mark of infamy, ib. 
 time of exile unlimited, ib. 
 when a punishment, ib. 
 is voluntary or involuntary, ib., 108. 
 voluntary, if to avoid punishment, 108. 
 involuntary, where effect of superior's 
 
 order, ib. 
 
 when limited to place, ib. 
 right of, to live somewhere, ib. 
 though right only an imperfect one, ib. 
 nations may refuse him admittance, ib. 
 but not without good reasons, ib. 
 cannot punish for offences committed out 
 
 of their territories, 109. 
 except for safety of mankind, ib. 
 of delivery up of offenders, 109, and note. 
 
 EXTERNAL LAW, 
 what, Ixii. 
 
 distinction between, and internal, Ixii. 
 external law relates to men, ib. 
 internal to the conscience, ib. 
 
 FALSEHOOD, 
 what, 372, 373. 
 
 distinction between, and a lie, 372. 
 when bound to speak the truth to an 
 enemy, 373. See ENEMY. 
 
 FEDERAL REPUBLIC, 
 what, 3. 
 
 a union of independent states by a per- 
 petual confederacy, 3. 
 
 FEUDATORY STATES, 
 what, 3. 
 
 one doing homage to a foreign power, 3. 
 though still a sovereign state, ib. 
 
 FOREIGNERS, 
 described, 171. 
 rules with respect to, 171. 
 conduct state should observe towards, ib. 
 right of, to enter territory, 172. 
 subject to the laws, 172, 173. 
 and punishable according thereto, 172. 
 disputes of, how judged, 172, and note, 
 protection due to, 173. 
 their duties towards the state, ib. 
 to what burthens subject, 174. 
 continue members of their own country, 
 
 t6. 
 
 state has no right over persons of, ib. 
 nor over personal property of, ib. 
 who are the heirs of a foreigner, 175. 
 right of, to make a will, ib. 
 will, how affected by law of country, ib. 
 of escheatage, or doctrine of alienage, 176, 
 
 and note. 
 
 of the right of, traite foraine, 177. 
 of immovable property possessed by, 177, 
 
 and notes. 
 
 cannot inherit real property, 177, note, 
 exceptions thereto by treaty, 177, note. 
 marriages of, 177. 
 validity, and proof of, 177, note. 
 
 FOREIGN JUDGMENT, 
 
 effect of, and proof thereof, 166, note. 
 English law on this subject, 166, in 
 note. 
 
 FOREIGN LAW, 
 
 how proved, 173 and note, 177, note. 
 
 GLORY, 
 
 of a nation, what, 91. 
 
 advantages of, ib. 
 
 duty of nation to establish, ib. 
 
 how acquired, ib. 
 
 duty of the prince herein, ib. 
 
 of the citizens, 92. 
 
 example of the Swiss, t'6. 
 
 attacking the glory of a nation, 93. 
 
 GOVERNMENT, 
 
 Of the several kinds of, 2. 
 . 1. Popular or Democratic, ib. 
 what, ib. 
 
 empire kept by body of nation in its 
 own hands, ib. 
 
 2. Aristocratic, ib. 
 what, ib. 
 
 where intrusted to a number of citizens, 
 ib. 
 
 3. Monarchical, ib. 
 what, ib. 
 
 where power in a single person, ib. 
 Principal objects of, 33. 
 
 1. To provide for necessities of nation^ 
 
 ib. 
 
 duty of sovereign herein, t'6. 
 should procure plenty, ib.
 
 INDEX. 
 
 GOVERNMENT (continued). 
 
 and take care there be sufficient work- 
 men, 33. 
 
 should prevent emigration of those use- 
 ful, t'6. 
 
 and punish emissaries enticing them 
 away, 34. 
 
 should encourage labour and industry, 
 ib. 
 
 2. To procure happiness of nation, 47. 
 nation should labour after its own hap- 
 piness, ib. 
 
 should instruct people, 47, 48. 
 
 educate youth, 48. 
 
 examples of ancient states herein, t'6. 
 
 should foster and encourage the arts 
 and sciences, ib. 
 
 allow freedom of philosophical discus- 
 sion, 49. 
 
 inspire a love of virtue, 51. 
 
 a hatred of vice, ib. 
 
 hereby intention of rulers discovered, 
 
 a. 
 
 state, <tc. should perfect its understand- 
 ing and will, 52. 
 
 and direct knowledge of citizens to its 
 welfare, t'6. 
 
 should inspire them with the love of 
 country, 52, 53. 
 
 so in each individual, 53. 
 
 the like between the nation and its 
 sovereign, t'6. 
 
 definition of term country, 53, 54, 101, 
 103. 
 
 man's duty towards it, 54. 
 
 criminal to injure one's country, ib. 
 
 the glory of good citizens, ib. 
 
 examples, ib. 
 
 3. To fortify itself against external attacks, 
 
 87. 
 
 of national strength, ib. 
 how constituted, ib. 
 by number of citizens, ib. 
 their military virtues, ib. 
 and their riches, ib. 
 
 increase of population, and how ef- 
 fected, ib. 
 
 of national valour, 88, 89. 
 . other military virtues, 89. 
 in what consists the wealth of a nation, 
 
 ib., 90. 
 
 not in revenues of sovereign, 89. 
 but in that of individuals, 89, 90. 
 strength of state increased thereby, 
 
 90. 
 when may be employed in defence of 
 
 the state, ib. 
 state should have income proportionate 
 
 to its expenditure, ib. 
 of the public revenue and taxes, ib. 
 should not increase its power by illegal 
 
 means, t'6. 
 
 GOVERNMENT (continued). 
 
 power of nation relative, 90. 
 
 should be measured by that of its 
 
 neighbours, t'6. 
 or those from whom it has any thing 
 
 to fear, t'6. 
 is sufficiently powerful when it can 
 
 resist attacks, t'6. 
 of the prudence requisite herein, ib. 
 
 GRANARIES, 
 
 propriety of establishing of, 36. 
 
 GUARANTY. See TREATIES. 
 
 for observance of treaties, 235. 
 
 what, 16. 
 
 gives the guarantee no right to interfere, 
 ib. 
 
 nature of the obligation it imposes, 236. 
 
 cannot impair the rights of a third party, 
 t'&. 
 
 duration of the guaranty, t'6. 
 HARBOURS, 
 
 of seashore, to whom belonging, 129, 
 
 130. 
 
 HEREDITARY STATE. See SUCCESSIVE 
 STATE. 
 
 what, 24. 
 
 origin of, t'6. 
 
 when may be changed, t'6. 
 
 of renunciations, 25. 
 
 how far binding, ib. 
 
 of regents, 27. 
 
 who to decide disputes respecting succes- 
 sion, t'6. 
 
 foreign powers ought not, 29. 
 HOSPITALS. See WAX. 
 
 erection of, for invalids, 296. 
 
 HOSTAGES. See TREATY. 
 
 who are such, 238, 239. 
 
 given for observance of treaties, t'6. 
 
 of the right over them, 239. 
 
 their liberty alone pledged, t'6. 
 
 when they are to be sent back, t'6. 
 
 whether they may be detained on any 
 other account, t'6. 
 
 may be detained for their own actions, 
 240. j, 
 
 of their support, t'6. 
 
 to be provided by party giving, ib. 
 
 subject cannot refuse to be, 241. 
 
 but a vassal may, t'6. 
 
 who may give and receive hostages, t"8. 
 
 rank of hostages, t'6. 
 
 ought not to escape, t'6. 
 
 on escape, should be sent back, 242. 
 
 death of, whether to^be replaced, t'6. 
 
 of him who takes the place of, t"6. 
 
 of a hostage succeeding to the crown, t'6. 
 
 to be released on delivery of another suf- 
 ficient hostage, t'6. 
 
 liability of, ends with treaty, 56.
 
 634 
 
 INDEX. 
 
 HOSTAGES (continued). 
 
 violation of treaty an injury to the host- 
 ages, .243. 
 
 abandonment of, by sovereign, t'6. 
 compensation due to them thereon, t'6. 
 fate of, when he who has given them fails 
 
 in his engagement, ib. 
 may transfer his allegiance, ib. 
 life of, cannot be taken, ib. 
 
 IMMUNITIES. See POPERY. 
 
 abuse of popish clergy in respect of, 71. 
 attempt of, to escape from political au- 
 thority, ib. 
 of their church possessions, 72, 73. 
 
 IMPERFECT NATURALIZATION, 
 what, 102. 
 
 INHABITANT. See COUNTRY. 
 who deemed such, 102. 
 the foreigners settled in a country, ib. 
 their rights and duties, ib. 
 are liable to the laws, ib. 
 are bound to defend the state, ib. 
 of perpetual inhabitants, ib. 
 who are such, ib. 
 children of, their rights, ib. 
 
 INHERITANCE. See PROPERTY. 
 
 right of parties to bequeath property, 
 
 116. 
 
 limitation of right, ib. 
 law of, in England, 116, note. 
 
 INSTRUCTIONS. See MINISTER, PUB- 
 
 LIC. 
 
 to public ministers, what, 461. 
 
 INTERNAL LAW OF NATIONS, 
 what, Iviii. 
 why so called, ib. 
 
 INTERNAL POLICE, 
 what, 83. 
 
 essential to preserve order, ib. 
 regulations to enforce, ib. 
 Holland instanced, ib. 
 
 INTERNATIONAL COURT, 
 difficult to establish, liii. 
 observations hereon, ib. 
 
 JURISDICTION, 
 of a nation, 166. 
 nature and extent of, ib. 
 nations should respect right of, ib. 
 effect of, in foreign countries, ib., and n. 
 (107). 
 
 JUS POSTLIMINIUM, 
 right of, defined, 392. 
 foundation of right, ib. 
 duty of sovereign herein, ib. 
 how right takes effect, 393. 
 whether among allies, ib. 
 
 JUS POSTLIMINIUM ((continued). 
 
 of no validity in neutral nations, 393. 
 
 what things recoverable by this right, 
 394. 
 
 right when presumed to be relinquished, 
 ib. 
 
 of persons who cannot return to right of, 
 ib. 
 
 but enjoy it when retaken, ib. 
 
 whether right extends to property alien- 
 ated by enemy, 395. 
 
 distinction between movable and immov- 
 able property, ib. 
 
 whether a subdued nation can enjoy this 
 right, 396. 
 
 distinction herein, ib. 
 
 right for what is restored at the peace, 
 397. 
 
 for things ceded to the enemy, ib. 
 
 does not exist on conclusion of peace, ib. 
 
 why always in force for prisoners, ib. 
 
 how rights of prisoners subsist, 398. 
 
 will of prisoner at war, ib. 
 
 marriage not dissolved by captivity of ono 
 of the parties, ib. 
 
 regulations respecting right of, established 
 by treaty or custom, ib. 
 
 JUSTICE AND POLITY, ' 
 
 necessity for observance of, 77, 160. 
 
 a nation ought to make justice reign, 77. 
 
 methods of doing so, ib. 
 
 by establishing good laws, ib. 
 
 by enforcing execution of them, 77, 78. 
 
 duty of prince in this respect, 78. 
 
 how he is to dispense justice, ib. 
 
 should appoint enlightened and upright 
 judges, ib. 
 
 ordinary courts should determine revenue 
 causes, 79. 
 
 should establish supremo courts, ib. 
 
 of the right of appeal, ib. 
 
 prince should preserve forms of justice, 80. 
 
 should support authority of judges, t'6. 
 
 of distributive justice, ib. 
 
 meaning of term, ib. 
 
 should regulate distribution of employ- 
 ments and rewards, ib. 
 
 of the punishment of transgressors, 81. 
 
 foundation of right to punish, t'6. 
 
 who to punish, t'6. 
 
 of the criminal laws, ib. 
 
 necessity of, to prevent crime, t'6. 
 
 of the degree of punishment, 82. 
 
 should be limited to safety of state, t'6. 
 
 should be proportioned to guilt of party, 
 t'6. 
 
 should not be sanguinary, t'6. 
 
 consequences thereof, ib. 
 
 execution of the laws, 82, 83. 
 
 to whom belongs, 82. 
 
 duty in this respect, 82, 83.
 
 INDEX. 
 
 635 
 
 JUSTICE AND POLITY (continued). 
 should not aggravate the sentence, 83. 
 of pardoning, ib. 
 an attribute of the sovereign, ib. 
 how to be exercised, ib. 
 of the internal police, ib. 
 in what it consists, ib. 
 essential to preserve order, ib. 
 regulations to enforce, ib. 
 Holland instanced, ib. 
 of duelling or single combat, 84. 
 custom of, condemned, ib. 
 means of putting a stop to this disorder, 
 
 84-87. 
 
 of the observance of justice between na- 
 tions, 160. 
 
 necessity for observance of, ib. 
 obligations of nations to cultivate it, 
 
 ib. 
 right of refusing to submit to injustice, 
 
 161. 
 right a perfect one, and produces, ib. 
 
 the right of defence, ib. 
 
 and right of doing ourselves justice, 
 
 ib. 
 
 right to punish injustice, ib. 
 right of nations against one that openly 
 
 despises justice, ib. 
 
 KING. See SOVEREIGN, SOVEREIGN STATE. 
 
 LAKE. See RIVERS, STREAMS, and LAKES. 
 proprietors of, who, 123. 
 of the increase of lakes, ib. 
 of the land formed on banks of, 125. 
 to whom belonging, ib. 
 where bed of, dried up, ib. 
 jurisdiction over lakes and rivers, ib. 
 
 LAW OF NATIONS, 
 
 defined, Iv. 
 
 idea and general principles of the law of 
 
 nations, Iv., Iviii. 
 
 what meant by a nation or state, Iv. 
 it is a moral person, ib. 
 definition of the law of nations, ib. 
 
 general view of, and how ascertained, ib., 
 n. (1). 
 
 present sources of information thereon, 
 Iv. 
 
 violation of, when a ground of war, ib. 
 
 no permanent or general court of, ib. 
 
 teaches rights and obligations of nations, 
 Iv. in note. 
 
 knowledge of, essential, ib. 
 
 how knowledge of, ascertained, t'6. 
 
 Christianity the unfailing rule in con- 
 struction of, ib. 
 
 in Great Britain held to be part of law 
 of the land, ib. 
 
 sources of information respecting, enume- 
 rated, ib. 
 In what light nation considered, IvL 
 
 LAW OF NATIONS (continued). 
 
 In what laws it originally consisted, .vi. m 
 originally the law of nature, ib. 
 though limited, Ac., by circumstances, t'6. 
 definition of the necessary law of, Iviii. 
 application of, to nations, ib. 
 internal law of nations, what, ib. 
 natural law of, what, ib. 
 it is immutable, ib. 
 nations cannot make change in, ib. 
 nor dispense with obligations arising from 
 
 it, ib. 
 
 treaty, Ac., contravening, unlawful, lix. 
 when otherwise, t'6. 
 Society established by nature between all 
 
 mankind, ib. 
 as between men, t'6. 
 as between nations, Ix. 
 object of this society of nations, Ixi. 
 general obligations herein, ib. 
 
 1. to benefit other nations without 
 
 prejudice to itself, Ixii. 
 
 2. the peaceable enjoyment of liberty 
 
 and independence, ib. 
 effect of that liberty, Ixii., 367. 
 nation may judge for itself, t'6. 
 of making war for injuries to, Ixiv. 
 extent of that right, t'6. 
 Distinctions between internal and external, 
 
 perfect and imperfect obligations and 
 
 rights, Ixii. 
 internal obligation binds the conscience, 
 
 t'6. 
 
 external relates to men, t'6. 
 internal obligation is of the same nature, 
 
 t'6. 
 
 though varying in degree, t'6. 
 external is divided into perfect and imper- 
 fect, t'6. 
 
 perfect, what, t'6. 
 imperfect, what, t'6. 
 Equality of nations, Ixiii. 
 all naturally equal, 16. 
 and inherit the same obligations and 
 
 rights, t'6. 
 
 without regard to power or weakness, ib. 
 effect of that equality, t'6. 
 each nation mistress of her own actions, 
 
 t'6. 
 when rights of others not affected thereby, 
 
 t'6. 
 
 Voluntary law of nations, ib. and note, 
 what meant thereby, t'6. 
 right of nations against infractors of, Ixir. 
 right of declaring war, t'6. 
 measure of that right, t'6. 
 Conventional law of nations, Ixv. and n. 
 
 (Ixiv). 
 
 what, and who bound by, Ixv. 
 Customary law of, t'6. 
 founded on a tacit consent, t'6. 
 how distinguished, t'6.
 
 636 
 
 INDEX. 
 
 LAW OF NATIONS (continued). 
 general rules respecting, Ixv. 
 how far obligatory, Ixvi. 
 when may be relinquished, ib. 
 Positive law of, ib. 
 is of three kinds, ib. 
 voluntary, ib. 
 customary, ib. 
 conventional, ib. 
 from whence proceeding, ib. 
 deduced from the will of nations, ib. 
 distinguished from natural or necessary 
 
 law of nations, ib. 
 General maxim respecting use of necessary 
 
 and voluntary law of nations, ib. 
 LEGISLATIVE POWER, 
 what, 11. 
 to whom intrusted, ib. 
 
 may be to the sovereign, ib. 
 or to an assembly, ib. 
 or to both jointly, ib. 
 right of, to change the constitution, ib. 
 only extends to civil and political laws, 
 
 ib. 
 
 and not to fundamental laws, ib. 
 LETTER OF MARQUE. See REPRISAL. 
 
 what, 285. 
 LIE, 
 
 distinction between, and mere falsehood, 
 
 372, 373. 
 when bound to speak the truth to an 
 
 enemy, 373. See ENEMY. 
 MANIFESTOES, 
 
 what, 319. 
 MARITIME LAW, 
 
 ancient codes relating to, Iv. in note, 
 is imperfect, ib. 
 MARRIAGE, 
 
 of aliens, 177, and note. 
 
 validity and construction of, in England, 
 
 166, note, 177, note, 
 how proved, 177, note, 
 not dissolved by captivity of one of the 
 
 parties, 398. 
 MEDIATION, 
 what, 276. 
 in time of peace, ib. 
 in time of war, 437. 
 MERCENARY SOLDIERS. 
 
 who, 297. 
 MILITARY DISCIPLINE, 
 
 importance of, considered, 299. 
 MILITARY LAWS, 
 
 necessity of, considered, 299. 
 MINISTERS, PUBLIC, 
 who are, 453. 
 
 of the several orders of, 459. 
 their origin, ib. 
 their representative character, ib. 
 
 MINISTERS, PUBLIC (continued). 
 
 Of ambassadors, 459. See AMBASSADOR. 
 
 are ordinary or extraordinary, ib. 
 
 distinction herein, ib. 
 
 privileges of, and rights, ib., and n. (464). 
 Of envoys, 460. 
 
 are ordinary or extraordinary, ib. 
 
 importance of the latter, ib. 
 Of residents, ib. 
 
 of ministers simply so called, ib. 
 
 representative character of, ib. 
 
 distinction between and ministers extra- 
 ordinary, 460, 461. 
 
 of consuls, agents, deputies, commission- 
 ers, Ac., 461. 
 
 credentials, what, ib. 
 
 character of minister known by, ib. 
 Instructions of, defined, ib. 
 
 what they contain, ib. 
 Sight of sending ambassadors, 461, 462. 
 Of the rights, privileges, and immunities cf, 
 464. 
 
 of the respect due to them, ib. 
 
 persons of, sacred and inviolable, ib. 
 
 privilege of, from arrest, 459, note. 
 
 particular protection due to him, 465. 
 
 injuries to, how redressed, ib. 
 
 when protection to, commences, 466. 
 
 what due to them in countries through 
 
 which they pass, ib. 
 
 Of ambassadors going to an enemy's country, 
 467. 
 
 when may be arrested, ib. 
 
 instance of arrest, ib. 
 
 of embassies between enemies, ib. 
 
 necessity for, ib. 
 Of heralds, trumpeters, and drummers, 468. 
 
 are privileged messengers, ib. 
 
 persons of, to be respected, ib. 
 
 even in civil war, 468, 469. 
 
 may bo refused admittance, when, 469. 
 
 appearance of insult to, should be avoided, 
 ib. 
 
 by and to whom they may be sent, 470. 
 Independence of foreign ministers, ib. 
 
 how they should behave, 472. 
 
 independence of, not to be converted into 
 licentiousness, ib. 
 
 must conform to the customs and laws of 
 the country, 472, 473. 
 
 so far as consistent with his mission, 472. 
 Tampering with fidelity of, 473. 
 Bribery of, and when excusable, 473, 474. 
 
 of making presents, Ac., by, ib. 
 How punishable, 475, 478. 
 
 1. for ordinary transgressions, 475. 
 
 2. for offences against the prince, ib, 
 right of ordering away, ib. 
 
 or of repressing him by force, if he be- 
 haves as an enemy, 476. 
 
 or where he forms dangerous plots and 
 conspiracies, ib.
 
 INDEX. 
 
 63T 
 
 MINISTERS, PUBLIC (continued). 
 
 instances of dismissal, 477. 
 
 what may be done to him, according to 
 the exigencies of the case, 478. 
 
 of ambassador attempting the life of the 
 sovereign, 479. 
 
 instances respecting immunities of public 
 ministers, 480, 481. 
 
 what reprisals may be made on, 481. 
 
 why not in general permitted, 481, 482. 
 Agreements of nations respecting privilege* 
 of, 482. 
 
 allowed the free exercise of his religion, 
 483. 
 
 exemption of, from imposts, 484 
 
 to what extent, ib. 
 
 this obligation founded on use and cus- 
 tom, 485. 
 Of secret ministers, ib. 
 
 rights and duties of, 485, 486. 
 
 of a sovereign in a foreign country, 486. 
 
 conduct to be pursued towards, ib. 
 
 his rights, privileges, and security, 486, 
 
 487. 
 Of deputies to states, 487. 
 
 rights and immunities of, ib. 
 
 safety to persons of, ib. 
 
 MINISTERS OF RELIGION. See RE- 
 LIGION. 
 MISSIONARIES, 
 
 of their employment in religious matters, 
 158. 
 
 of refusal of admittance to them, ib. 
 MONARCHY. See GOVERNMENT. 
 
 denned, 2. 
 
 a government confided to one person, 2. 
 
 form of, considered, 2, in note. 
 MONEY AND EXCHANGE, 
 
 Of the establishment of money, 45. 
 
 utility and convenience of, ib. 
 
 commerce facilitated by, ib. 
 
 duty of nation with respect to coin, f b. 
 
 impression on the seal of its standard 
 value, ib. 
 
 should be coined in sovereign's name, ib. 
 
 amount of coinage, ib. 
 
 of increasing value of, when inexpedient, 
 ib. 
 
 rights in respect of, 46. 
 
 state alone has the right of coining, ib. 
 
 of counterfeiting coin, ib. 
 
 an offence against the sovereign, ib. 
 
 though made of standard value, ib. 
 
 coining a prerogative of majesty, ib. 
 
 how one nation may injure another in the 
 article of coin, 47. 
 
 as by counterfeiting, ib. 
 
 or protecting, Ac. those who do, ib. 
 
 all princes equally interested in extermin- 
 ating them, ib., and note. 
 Of exehange and the law of commerce, 47. 
 
 MONEY AND EXCHANGE (continued). 
 a custom of merchants for remitting 
 
 money, 47. 
 
 should be supported by good laws, ib. 
 duty of nations herein, ib. 
 MONOPOLY. See COMMERCE. 
 
 duty of sovereign to hinder, 1x6. 
 MUNICIPAL COURT. See JURISDICTION. 
 jurisdiction of, Iv. in note, 
 cannot enforce treaty, ib. 
 when otherwise, ib. 
 NATION. See STATE. 
 
 law of. See LAW OP NATIONS. 
 
 meaning of term nation, Iv., 1. 
 
 is a moral person, ib. 
 
 susceptible of obligations and rights, Iv., 
 
 4. 
 
 of the state and sovereignty of, 1. 
 of the several kinds of government of, 2. 
 General principle of the duties of a nation 
 
 towards itself, 4. 
 
 should act agreeably to its nature, ib. 
 should preserve and perfect itself, ib. 
 in what consists its preservation, ib. 
 what its perfection, ib. 
 what is the end of civil society, 5. 
 of the nation's obligation to preserve 
 
 itself, ib. 
 
 also to preserve its members, ib. 
 has a right to everything necessary for 
 
 its preservation, 6. 
 or which may promote that end, ib. 
 should avoid every thing that might 
 
 occasion its destruction, 6, 7. 
 should be perfect in itself and state, 6. 
 should avoid every thing contrary 
 
 thereto, 7. 
 
 of the right derived from these obli- 
 gations, ib. 
 examples, ib. 
 
 a nation ought to know itself, 8. 
 Common duties of, towards others, 133. 
 foundation of these duties, 133, 134. 
 offices of humanity, 134, 135. 
 difference of religion should not pre- 
 clude the performance of them, 
 139. 
 
 instances, 139, 140, and notes, 
 general principle of the mutual duties 
 
 of nations, 135. * 
 
 duties of a nation for the preservation 
 
 of others, ib. 
 
 should assist a nation affected with 
 famine or other calamity, 136, 
 and note, 
 instances, 136. 
 should contribute to the perfection of 
 
 others, 136, 137. 
 of the right to require the offices of 
 
 humanity, 138. 
 
 of the right to refuse them, ib. 
 3D
 
 638 
 
 INDEX. 
 
 NATION (continued). 
 
 performance of, cannot be enforced, 138. 
 mutual love of nations, ib. 
 
 each nation should cultivate the friend- 
 ship of others, 138, 139. 
 
 and perfect itself for the advantage of 
 others, 139. 
 
 to take care of their glory, ib. 
 
 rule and measure of the offices of hu- 
 manity, 140. 
 
 particular limitation with regard to the 
 prince, 141. 
 
 no nation ought to injure others, 141, 
 142. 
 
 meaning of the word injure, 141, note. 
 
 how far one nation may injure the com- 
 merce of another, 142, note. 
 
 case of revolted colony, ib. 
 
 should avoid giving offence to others, 
 142, 143. 
 
 of the publication of libels, 143, note. 
 Of the protection sought by a nation, 93. 
 
 of simple protection, 93, 94. 
 
 how obtained, and terms, ib. 
 
 reservation of right of government, ib. 
 
 voluntary submission of one nation to 
 another, 94. 
 
 when may lawfully do so, 16. 
 
 on what terms, ib. 
 
 of the different kinds of submission, ib. 
 
 may leave inferior nation a part of the 
 sovereignty, ib. 
 
 may totally abolish it, ib. 
 
 may incorporate the two in one, ib. 
 
 right of citizens when nation submits to a 
 foreign power, ib. 
 
 when not bound to submit, ib. 
 
 may sell effects and retire elsewhere, 94, 
 106. 
 
 these compacts how annulled, 95. 
 
 by failure of protection, 95, 96, and 
 note. 
 
 through want of good faith, 95. 
 
 by infidelity of party protected, ib. 
 
 by encroachments of, protected, ib. 
 
 by silence of party protected, 95, 96. 
 Of the separation of a nation from a state of 
 which it is a member, 96, 97. 
 
 difference between incorporated nations 
 and those merely in a state of sub- 
 jection, 16. 
 
 failure of protection alone no ground of 
 separation, ib. 
 
 their duty when in danger, 97. 
 
 to use endeavours to maintain themselves 
 in their present state, ib. 
 
 if overcome by force, may treat with the 
 conqueror, ib. 
 
 their right when abandoned, 97, 98. 
 
 may provide for their own safety, 97. 
 
 instances, 97, 98. 
 Of the establishment of, in a country, 98. 
 
 NATION (continued). 
 
 possession of, and how acquired, 98. 
 exclusive right thereto, ib. 
 comprehends two things, ib. 
 right of domain and empire, ib. 
 acquisition of, in a vacant country, 99. 
 empire over, acquired with domain, t'6. 
 another mode of acquiring it, t'6. 
 of appropriation of a desert country by a 
 
 nation, ib. 
 
 must take entire possession, t'6. 
 where possession in a few wandering 
 
 tribes, 99, 100, 101. 
 by treaties, 153. 
 our duty to conform to general customs, 
 
 153, and note. 
 of mutual respect sovereigns owe each 
 
 other, 153. 
 how sovereign ought to maintain hia 
 
 dignity, 154. 
 
 Of the right of nation to security, ib. 
 nature of this right, ib. 
 gives the right of resistance, 154, 161. 
 and of obtaining reparation, 155, 161. 
 gives the right of punishing, t'6. 
 right of, against a mischievous people, ib. 
 cannot interfere in the government of 
 
 another state, 155, and note. 
 one sovereign cannot make himself judge 
 
 of conduct of another, 155. 
 how far may interfere in a quarrel be- 
 tween a sovereign and his people, 
 
 157. 
 right of opposing such interference, 157, 
 
 158. 
 no nation to be restrained as to religion, 
 
 158. 
 offices of humanity in these matters, 
 
 t'6. 
 
 Of missionaries, ib 
 may order them to leave dominions, 
 
 ib. 
 
 their duty to obey, t'6. 
 of the circumspection to be used herein, 
 
 159. 
 what sovereign may do in favour of 
 
 those who profess his religion in 
 
 another state, 159, 160. 
 Of colonies, 101. 
 when they become a part of the mother 
 
 country, t'6. 
 Of the things relating to that establishment, ib. 
 
 See COUNTRY. 
 Of the mutual commerce between nations, 143. 
 
 See COMMERCE. 
 
 Of the dignity and equality of nations, 149. 
 dignity of nations or sovereigns, ib. 
 their obligation to maintain it, 149, 
 
 154. 
 
 their equality, 149. 
 their precedence, t'6. 
 none can claim it as a right, ib.
 
 INDEX. 
 
 639 
 
 NATION (continued). 
 
 how far power and antiquity of state give 
 it precedence, 149. 
 
 form of government immaterial, 150. 
 
 state to keep its rank, though govern- 
 ment changed, ib. 
 
 treaties and established customs to be 
 observed, t'6. 
 
 instances herein, 150, 151. 
 
 of the name and honours given by the 
 nation to its conductor, 151. 
 
 rule of conduct in this respect, ib. 
 
 right of sovereign to assume honours and 
 titles, 152. 
 
 right of other nations in this respect, 
 152. 
 
 their duty, ib. 
 
 how titles and honours may be secured, 
 
 153. 
 
 Of the observance of justice between nations, 
 160. See JUSTICE AND POLITY. 
 
 necessity for observance of, 160. m 
 
 obligation of nations to cultivate it, t'6. 
 
 right of refusing to submit to injustice, 
 161. 
 
 this right a perfect one, ib., and pro- 
 duces, 
 
 the right of defence, t'6. 
 the right of doing ourselves justice, 
 
 ib. 
 and right to punish injustice, t'6. 
 
 right of nations against one that openly 
 
 despises justice, t'6. 
 
 P/ terminating disputes between nations, 
 274. 
 
 general observations herein, t'6. 
 
 every nation bound to give satisfaction, 
 275. 
 
 how nations may abandon their rights 
 and complaints, t'6. 
 
 duty of sovereign to insist on compen- 
 sation for wrongs to his subjects, 
 276. 
 
 means suggested by the law of nature 
 for terminating their disputes, t'6. 
 
 1. by amicable accommodation, t'6. 
 
 2. by compromise, t'6. 
 
 3. by mediation, t'6. 
 
 4. by arbitration, 277, 278. 
 
 these several modes described, 276, 
 278. 
 
 of conferences and congresses, 278. 
 
 distinctions to be made between evident 
 and doubtful cases, 278. 
 
 between essential rights and inferior ones, 
 279. 
 
 of resorting to force in doubtful cases, 
 280. 
 
 when conciliatory measures maybe dis- 
 pensed with, t'6. 
 
 effect of voluntary law of nations, 280, 
 281. 
 
 NATION (continued). 
 
 equitable conditions to be offered, 281, 
 
 282. 
 rights of party in possession in doubtful 
 
 cases, t'6. 
 how reparation of injury to be sought, 
 
 t'6. 
 
 of retaliation, 282, 283. 
 when, and how far justifiable, t'6. 
 of the various modes of punishment with- 
 out resorting to arms, 283. 
 of retortion, what, t'6. 
 of reprisals, what, 283, 284. See RE- 
 PRISAL. 
 
 Of the glory of a nation, 91. See GLORY. 
 Of the concern a nation may have in the 
 actions of her citizens, 161. See 
 CITIZEN. 
 Of the effects of domain between nation*, 164. 
 
 See COUNTRY. 
 Of the rights common to all nations, 178. 
 
 See OBLIGATIONS AND RIGHTS. 
 Of war between nations, 290. See WAR, 
 Of peace between nations, and obligation to 
 cultivate it, 428. See PEACE. 
 
 NATIVES. See COUNTRY. 
 who are, 101. 
 those born of parents who are citizen?, 
 
 t'6. 
 
 succeed to rights of parents, 101, Ac. 
 born of foreigners, 101. 
 become citizens by tacit consent, t'6. 
 
 NATURALIZATION, 
 what, 102, and n. 
 by whom granted, 102. 
 of imperfect naturalization, t'6. 
 of naturalization by birth, ib. 
 instances, t'6. in note. 
 
 NATURAL LAW, 
 
 what, Iviii. in note. 
 
 defined to be the science of the law of 
 
 nature, Ixvii. in note. 
 of God and our conscience, t'5. 
 the basis of the law of nations, Iv. in 
 
 note, 
 nations subject to, and bound by, Ivi. 
 
 NECESSARY LAW, 
 what, Iviii. 
 
 application of, to nations, t'6. 
 why so called, t'6. 
 is immutable, t'6. 
 nations cannot vary, t'6. 
 
 or dispense with its obligations, t'6. 
 maxim concerning use of, Ixvi. 
 
 NEUTRALITY, 
 what, 332. 
 
 of neutral nations, t'6. 
 conduct to be observed by, t'6. 
 impartiality of, t'6.
 
 640 
 
 INDEX. 
 
 NEUTRALITY (continued). 
 
 in what it consists, 332. 
 
 relates solely to war, ib. 
 
 what a breach of neutrality, 332, 333. 
 
 an ally may furnish succour due from 
 him, 333. 
 
 and yet remain neuter, ib. 
 
 of the right of remaining neuter, ib. 
 
 all nations may remain so, ib. 
 
 unless otherwise bound by treaties, ib. 
 
 when they should join in the contest, ib. 
 
 treaties of neutrality, ib. 
 
 when lawful to enter into, ib. 
 
 when from necessity, ib. 
 
 when with both parties, 333, 334. 
 
 foundation of rules of neutrality, 334. 
 
 how levies may be allowed, Ac., without 
 breach of, ib. 
 
 of breach of, generally, 334, 335. 
 
 trade of neutral nations with those at war, 
 335, and note. 
 
 of seizing the property thereof, 336. 
 
 passage of troops through neutral coun- 
 try, 340. 
 
 of the right thereof, ib. 
 
 when may be refused, 340, 343, 345. 
 
 permission must be applied for, 340. 
 
 may be refused for good reasons, 341. 
 
 as where war unjust, 345. 
 
 in what case may be forced, 341. 
 
 fear of danger authorizes a refusal, 342, 
 343. 
 
 or a demand of every reasonable security, 
 342. 
 
 whether necessary to give security re- 
 quired, ib. 
 
 equality to be observed towards both par- 
 ties as to the passagr/, 343. 
 
 no complaint lies against neutral state for 
 granting passage, ib. 
 
 state may refuse from fear of resentment 
 of opposite party, ib. 
 
 or lest her country should become the 
 theatre of war, ib. 
 
 what included in grant of passage, 344. 
 
 to include all connected with passage of 
 troops, ib. 
 
 safety of passage, ib. 
 
 hostilities not to be committed in neutrals' 
 country, ib. 
 
 sea, when considered part of territory, 
 344, in note. 
 
 of contraband goods, 337. 
 
 what deemed such, ib. 
 
 distinctions as to, ib. 
 
 when may be confiscated, ib. 
 
 of searching neutral ships, 338, 339, and 
 note. 
 
 foundation of right to do so, 339. 
 
 neutral ship refusing to be searched, and 
 consequences, ib. 
 
 may be condemned as a prize, ib. 
 
 NEUTRALITY (continued). 
 
 manner of search generally settled in 
 
 treaties, 339. 
 credit usually given to certificates, and 
 
 bill of lading, ib. 
 
 unless fraud apparent, 339, and notes, 
 of enemy's property on board neutral 
 
 ship, 339. 
 
 liability thereof to seizure, 339, and note, 
 of neutral's property on board enemy's 
 
 ship, 339. 
 
 restoration thereof to neutral, ib. 
 latter to bear any loss resulting from 
 
 capture, ib. 
 of trading with a besieged town, 339, 
 
 and note, 
 commerce with, absolutely prohibited, 
 
 339. 
 of blockade, and violation thereof, 339, 
 
 and note. See BLOCKADE. 
 of impartial offices of neutrals, 340. 
 duty of, towards belligerents, ib. 
 may render impartial assistance, ib. 
 other assistance by treaty, Ac., ib. 
 enemy pursuing ship into neutral port 
 
 must refrain from hostilities there, 
 
 344, note. 
 
 nor can ship be condemned in, 344, note, 
 neutral country not to afford a retreat to 
 
 troops, 345. 
 
 conduct of troops passing through neu- 
 tral country, ib. 
 stipulations for indemnification against 
 
 loss, ib. 
 
 OATH. See TREATIES. 
 
 of the use of, in treaties, 232. 
 
 does not constitute the obligation, ib. 
 
 or change the nature thereof, ib. 
 
 or give pre-eminence of one treaty above 
 
 another, 233. 
 does not give force to an invalid treaty, 
 
 ib. 
 of asseverations, ib. 
 
 OBLIGATIONS AND RIGHTS. 
 Distinctions respecting, Ixii. 
 are internal and external, ib. 
 or perfect and imperfect, ib. 
 Internal obligation, ichat, ib. 
 binding on the conscience, ib. 
 always of the same nature, ib. 
 External, what, ib. 
 relates to men, Ac., ib. 
 is either perfect or imperfect, ib. 
 perfect where performance may be com- 
 pelled, ib. 
 
 imperfect when only a right to ask, ib. 
 Of rights retained by all nations, 178. 
 of what rights men cannot bo deprived, 
 
 ib. 
 
 right still remaining from primitive state 
 of communion, ib.
 
 INDEX. 
 
 641 
 
 OBLIGATIONS, &c. (continued). 
 
 introduction and tacit restriction there- 
 on, 178. 
 
 right retained by each nation over the 
 property of others, ib. 
 
 right of necessity, ib. 
 
 right of procuring provisions by force, 
 179. 
 
 when this right may be resorted to, ib. 
 
 right of making use of things belong- 
 ing to others, ib. 
 
 compensation for the same, ib. 
 
 of pressing vessels in cases of neces- 
 sity, ib. 
 
 compensation to be made for services, 
 ib. 
 
 right of carrying off women, ib. 
 
 instance of the rape of Sabine women, 
 fb. 
 
 right of passage, 180. 
 
 none can be deprived of, ib. 
 
 though right limited, ib. 
 
 right of, from necessity, ib. 
 
 when may be enforced, ib. 
 
 when to escape from danger, ib. 
 
 of right of vessel to force entry in a 
 foreign port, ib. 
 
 right of procuring necessaries, ib. 
 right of dwelling in a foreign country, 
 ib. 
 
 right herein defined, 180, 181. 
 
 right of use of things inexhaustible, 
 181. 
 
 instances of rights, ib. 
 
 right of innocent use, and what meant 
 thereby, 181, 182. 
 
 nature of this right in general, 182. 
 
 who to decide thereon, ib. 
 
 where right doubtful, ib. 
 
 in cases not doubtful, ib. 
 
 exercise of this right between nations, 
 
 182, 183. 
 Of the right of domain, 183. 
 
 exercise of that right by nations, ib. 
 
 general duty of the proprietor, ib. 
 
 bound to grant a lawful passage, ib. 
 
 but sureties may be required, 184. 
 
 passage of merchandise, ib. 
 
 right of residence, 184, 171. 
 
 should in general be granted, 184. 
 
 unless required for unlawful purposes, 
 ib. 
 
 what, no ground for expulsion, 184, 
 185. 
 
 how to act towards foreigners desiring a 
 perpetual residence, 185. 
 
 of the right accruing from a general 
 permission, ib. 
 
 of right granted as a favour, 186. 
 
 the nation ought to be courteous, ib. 
 
 FACTION. See TREATY, COITVENTIOK. 
 81 
 
 PARDON, 
 
 right of, in whom, 83. 
 
 an attribute of sovereignty, ib. 
 
 of the exercise thereof, ib. 
 
 should be without injury to any one, ib. 
 
 or where welfare of state requires an 
 
 exception, ib. 
 exercise of, should be for advantage 
 
 of society, ib. 
 PASSPORT, 
 what, 416. 
 
 distinction as to, and safe conduct, ib. 
 by whom granted, 459, in note, 105. 
 
 PATRIMONIAL STATE, 
 what, 30. 
 
 doctrine of, refuted, 25, 30, 435. 
 true sovereignty inalienable, 25, 31, 32, 
 
 and notes. 
 duty of sovereign empowered to appoint 
 
 successor, 32, 435. 
 must have at least a tacit ratification, 
 
 32, 33. 
 PEACE, 
 
 what peace is, 429, 430. 
 obligation to cultivate it, 430. 
 sovereign's obligation herein, t'6. 
 extent of this duty, ib. 
 of the disturbers of, 431. 
 how far war may be continued, 431, 302. 
 peace the end of war, 432. 
 general effects of peace, ib. 
 Treaties of, 432 to 440. 
 defined, 432. 
 by whom concluded, ib. 
 sovereign's authority herein, 432, 43?. 
 when limited, 433. 
 
 of alienations made by a treaty of peace, t'6. 
 to what extent may be made, 433, 434. 
 when sovereign may dispose of what 
 
 concerns individuals, 435. 
 state bound to indemnify sufferers, t'6. 
 whether sovereign, prisoner of war, can 
 
 conclude treaty of peace, t'6. 
 when he may negotiate it, Ac., ib. 
 who then to conclude it, t'6. 
 duty of state to procure release of sove- 
 reign, 436. 
 
 when may be made with an usurper, &. 
 allies included in, t'6. 
 when not binding on allies, 438, 437. 
 associates, to treat eaeh by himself, 437. 
 of mediation, ib. 
 on what footing peace may be concluded, 
 
 t'6. 
 
 general effect thereof 438. 
 engage to preserve perpetual peace, ib. 
 of special compromises, t'6. 
 amnesty, what, 439. 
 a perpetual oblivion of the past, ib. 
 necessarily implied ra everp treaty of 
 peace, t'6.
 
 642 
 
 INDEX. 
 
 PB4CE (continued). 
 
 of things not mentioned in the treaty, 
 439. 
 
 >f things not included therein, ib. 
 
 does not extend to things having no re- 
 lation to the war, ib. 
 as debts contracted with individuals, ib. 
 or to movables, Ac., ib. 
 
 former treaties, mentioned and confirmed 
 
 in the new, are part of it, 440. 
 Of the execution of those treaties, 440 to 443. 
 
 when the obligation of the treaty com- 
 mences, 440. 
 
 publication of peace, ib. 
 
 should bo without delay, ib. 
 
 when may be postponed, 440, 441. 
 
 time of the execution thereof, 441. 
 
 lawful excuse for delay, ib. 
 
 promise void when party has hindered 
 the performance of it, ib. 
 
 cessation of contributions, 442. 
 
 products of the things ceded or restored, 
 ib. 
 
 in what condition to be restored, ib. 
 
 import of word restitution, ib. 
 
 instances, 442, 443. 
 Interpretation of treaty of peace, 443. 
 
 1. where doubtful, against the pre- 
 
 scriber thereof, ib. 
 
 2. names of ceded countries, ib. 
 
 how to be understood, ib. 
 
 3. restoration not to be understood of 
 
 those who have voluntarily given 
 themselves up, 444. 
 
 Of the observance and breach thereof, ib. 
 binds the nation and successors, ib. 
 to be faithfully observed, ib. 
 plea of fear or force does not dispense 
 
 with its observance, ib. 
 breach of what, 446. 
 1 ways in which it may be broken, ib. 
 may be violated in three ways, 446 to 450. 
 
 1. by conduct contrary to the nature 
 
 thereof, 446. 
 to take up arms for a fresh cause, 
 
 no breach, ib. 
 nor is a subsequent alliance with an 
 
 enemy a breach, 447. 
 distinction to be made between a new 
 
 war and a breach of treaty, ib. 
 JHstiflable defence no breach of 
 
 treaty, 44S. 
 causes of rupture on account of 
 
 allies, 449. 
 
 2. by conduct contrary to its par- 
 
 ticular nature, ib. 
 instances herein, ib. 
 
 3. by violation of any article, ib. 
 violation of a single article breaks 
 
 the whole treaty, 450. 
 no distinction between more and less 
 important articles, 449. 
 
 PEACE (continued). 
 
 of penalty annexed to the violation of an 
 
 article, 450. 
 
 studied delays, their effect, ib. 
 of insurmountable difficulties, ib. 
 when time must be allowed, 450, 451. 
 or indemnity given, 451. 
 preferable to recourse to arms, ib. 
 instruction of treaty by subjects, ib. 
 distinction, if not imputable to sovereign, 
 
 ib. 
 
 the treaty not broken by, ib. 
 of infraction by allies, ib. 
 right of offended party against violator 
 
 of treaty, 452. 
 optional to declare treaty null, or allow 
 
 it to subsist, ib. 
 
 PIETY. See RELIGION. 
 
 meaning of, 55. 
 
 its influence on happiness of nation, ib. 
 
 nation ought therefore to be pious, ib. 
 
 should be attended with knowledge, ib. 
 
 consequences of want of, 55, 56. 
 POISON, 
 
 use of, in warfare condemned as odious, 
 360. 
 
 not to be adopted by way of reprisal, ib. 
 
 of poisoning prisoners, 358, 360, 361. 
 
 use of poisoned weapons condemned, 361. 
 
 so, of poisoning springs, ib. 
 POLICE. See JUSTICE AND POLITY. 
 POLITICAL EQUILIBRIUM. See WAR. 
 
 what, 312. 
 
 POPE. See POPERY. 
 POPERY, 
 
 Abuses of, particularized, 66. 
 
 1. power of the popes, ib. 
 extent thereof, 66, 67. 
 whence it arises, 67. 
 
 effect of, in a foreign court, ib. 
 instances, 65 to 67. 
 
 2. important employments conferred 
 
 by a foreign power, 68. 
 disposal of ecclesiastical dignities, ib. 
 practice hereof a violation of nation's 
 
 right, ib. 
 nations submitting to, condemned, 
 
 ib. 
 
 3. powerful subjects depending on a 
 
 foreign court, 68, 69. 
 abuse in this respect, 69. 
 
 4. the celibacy of the priests, ib. 
 for what cause invented, ib. 
 practice of, condemned, 69, 70. 
 of convents, ib. 
 
 marriage advocated, 70. 
 
 5. enormous pretensions of the clergy, 
 
 ib. 
 
 their pre-eminency, ib. 
 its prejudice on good order, ib.
 
 INDEX. 
 
 643 
 
 POPERY (continued). 
 
 6. independence of, 71. 
 immunities, ib. 
 
 their attempt to escape from political 
 
 authority, t'6. 
 claim their immunities from God, ib. 
 
 7. immunities of church possessions, 
 
 72, 73. 
 
 same immunity claimed for pos- 
 sessions of the church, 72. 
 
 when state may exempt them, ib. 
 
 should be first taken for the use and 
 safety of the state, 73. 
 
 limit of exemption, 72. 
 
 8. excommunication of men in office, 
 
 73. 
 
 9. and of sovereigns themselves, 74. 
 instances of abuse, ib. 
 
 but abuses not confined to popes, 
 
 ib. 
 instance, 74, 75, in note. 
 
 10. the clergy drawing every thing to 
 
 themselves, and disturbing the 
 order of justice, 75, 76. 
 
 11. money drawn to Rome, 76. 
 
 their rapacity herein, ruinous to 
 the court of Rome, ib. 
 
 12. laws and customs contrary to the 
 
 welfare of states, t'6. 
 consequence of trusting same to the 
 
 clergy, t6. 
 its pernicious effect on the state, ib. 
 
 POPULAR GOVERNMENT. See GO- 
 VERNMENT. 
 what, 2. 
 
 empire kept by state in its own hands, 2. 
 also called a democracy, ib. 
 
 PORTS. See SEA. 
 
 to whom belonging, 129. 
 enemy pursuing ship into neutral port 
 must refrain from hostilities there, 
 344, n. 
 POSITIVE LAW, 
 
 what, Ixiv., Ixvi., Ixvii., and notes, 
 proceeds from the will of nations, 66. 
 is of three kinds, Ixvi. 
 
 1. voluntary, what, t'6. 
 
 2. customary, what, t'6. 
 
 3. conventional, what, t'6. 
 
 the two latter called the arbitrary law of 
 nations, Ixvi. 
 
 POSTLIMINIUM. See Jus POSTLIMINIUH. 
 
 PREROGATIVES OF THE CROWN, 
 what, 15. 
 
 with respect to coin, 46. See COIN. 
 in matters of religion, 62. See RELIGION. 
 with regard to public property, 112. See 
 
 PROPERTY. 
 as to pardoning offenders, 83. See 
 
 PARDON. 
 
 PRESCRIPTION, 
 
 of usucaption and prescription, 187, and 
 note. 
 
 definition of, 187, &c. 
 
 is derived from the law of nature, 187. 
 
 what foundation required for ordinary 
 prescription, 189. 
 
 of immemorial prescription, t'6. 
 
 claimant alleging reasons for his silence, 
 190. 
 
 proprietor showing he does not intend to 
 abandon his right, t'6. 
 
 prescription founded on the actions of 
 the proprietor, 16. 
 
 usucaption and prescription take place 
 between nations, t'6. 
 
 more difficult between nations to found 
 them on a presumptive desertion, 
 190, 191. 
 
 other principles that enforce prescription, 
 191. 
 
 effects of voluntary law of nations on 
 this subject, 191, 192. 
 
 law of treaties or customs herein, 192. 
 
 nations should adopt rules on this sub- 
 ject, ib. 
 
 exclusive right to, not acquired by pre- 
 scription, 127. 
 
 right may be acquired by treaty, 126. 
 
 PRETEXTS, 
 
 what, 304, 306. See WAR. 
 
 PRISONERS OF WAR. See WAR. 
 right of making, 353. 
 are not to be put to death, 348, 354. 
 how to be treated, 354. 
 may be confined and fettered, t'6. 
 
 but not to be treated harshly, t'6. 
 
 unless guilty of crime, t6. 
 are seldom ill-treated by European na- 
 tions, t'6. 
 
 of releasing them on parole, 355. 
 whether prisoners who cannot be fed, 
 &c., may be put to death, t6. 
 
 should be dismissed on parole, ib. 
 whether may be made slaves, 356. 
 
 in what cases lawful, ib. 
 exchange and ransom of, 357. 
 object of detention of, t'6. 
 time of exchange or ransom, ib. 
 
 when proper, t'6. 
 state bound to procure release of, ib. 
 
 its duty to provide for support, ib. 
 formerly obliged to redeem themselves, ib. 
 of assassination and poisoning of, 353, 
 
 360, 361. 
 
 practice of, condemned, t'6. 
 of the jus postliminium with respect to, 
 
 398. 
 
 in force for prisoners, 397. 
 how rights of, subsist, 398. 
 may dispose of and will property, t'6
 
 644 
 
 INDEX. 
 
 PRIZE COURT, 
 
 how constituted, 364, 392, in notes, 
 questions of capture or prize determined 
 
 in, 364, 392, in notes, 
 rules respecting, 166, note. 
 
 1. must belong to belligerent country 
 
 ti, 344, note. 
 
 2. must have actually sat in country 
 
 to which it belonged, ib. 
 
 3. properly condemned must be, at 
 
 time of condemnation, in country 
 where sentence pronounced, ib. 
 
 PRIVATEER. SeeWAK. 
 
 PROPERTY, 
 
 Different kinds of, 109. 
 
 is public, common, or private, ib. 
 Of public property, 109, 113. 
 
 what, 109. 
 
 called by Romans res communes, ib. 
 
 of what it consists, ib. 
 
 how acquired, 110. 
 
 of the revenues of the public pro- 
 perty, ib. 
 
 naturally at the sovereign's disposal, 
 ib. 
 
 nation may grant him the use and 
 property of its common posses- 
 sions, ib. 
 
 may allow him the domain, ib. 
 
 and reserve to itself the use of them, 
 ib. 
 
 of taxes, 111. See TAXES. 
 
 nation may reserve to itself the right 
 of imposing, ib, 
 
 of the sovereign who has this power, 16. 
 
 his duties with respect to, 112. 
 
 of eminent domain annexed to sove- 
 reignty, ib. 
 
 his right thereto, ib. 
 
 may dispose thereof, ib. 
 
 government of private property, 113. 
 Of common properly, 113, 115. 
 
 what, 109, 110. 
 
 sovereign may make laws respecting, 
 113. 
 
 but not abuse such power, ib. 
 
 of alienation of property of a corpo- 
 ration, ib. 
 
 corporation has a right to do so, ib. 
 
 how that right should be exercised, ib. 
 
 whose consent requisite therein, ib. 
 
 of the several kinds of corporate pro- 
 perty, 114. 
 
 use of common property, ib. 
 
 how each member is to enjoy it, ib. 
 
 must not injure the common use, ib. 
 
 right of anticipation in the use of it, 16. 
 
 instances of the exercise of this right, 
 ffc 
 
 in drawing water from a well, ib. 
 
 or felling tree in a forest, 114. 
 
 PROPERTY (continued). 
 
 preservation and repairs of common, 
 possessions, 115. 
 
 expenses hereof, and how raised, ib. 
 
 duty and right of sovereign herein, ib. 
 Of private property, 115, 116. 
 
 rights of proprietors of, 115. 
 
 when sovereign may interfere there- 
 ' with, ib. 
 
 may subject it to regulations of police, 
 ib. 
 
 may compel sale of, in cases of neces- 
 sity, 115, 116. 
 
 power over, in other instances, ib. 
 
 should hinder monopolies, 116. 
 
 of inheritances thereto, ib. 
 
 right of persons to bequeath it, ib. 
 
 when limited, ib. 
 Of the alienation of public property, ib. 
 
 right of nation herein, ib. 
 
 duties of nation in this respect, ib. 
 
 in cases of necessity, ib. 
 
 duties of the prince as to, 117. 
 
 cannot alienate it, ib. 
 
 though nation may give him a right 
 to it, ib. 
 
 but right not to be presumed, ib. 
 
 rules respecting alienation between 
 nations, ib. 
 
 of treaties thereon, ib. 
 
 of alienation of a part of the state, 1 18. 
 
 should only be in cases of extreme 
 necessity, ib. 
 
 rights of dismembered party, 118, 119. 
 
 not obliged to receive new master, 119. 
 
 whether prince has power to dismem- 
 ber the state, ib. 
 
 PROTECTION. See NATION. 
 
 of protection sought by a nation, 93. 
 simple treaty of, what, 93, 94. 
 how annulled, 95. 
 
 PUBLIC GRANARIES, 
 
 propriety of establishing, 36. 
 
 PUBLIC WAYS, 
 
 utility of highways, canals, &c., 43, and 
 
 note. 
 
 duty of government in respect of, 43. 
 should render them safe and commo- 
 dious, ib. 
 
 its rights in this respect, 16. 
 nation should contribute to expenses of, 
 
 ib. 
 
 may compel people to labour at, 44. 
 or contribute to the expense, 44, and 
 
 see note. 
 
 foundation of the rights of toll, ib. 
 abuses of, ib., and notes, 
 how far tolerated by arbitrary law of 
 
 nations, ib. 
 now generally settled by treaties, ib.
 
 INDEX. 
 
 645 
 
 PUNISHMENT. See JUSTICE. 
 Of transgressors, 81. 
 foundation of right of punishing, \b. 
 founded on right of personal safety, ib. 
 to whom it belongs, ib. 
 of the laws, and their execution, ib. 
 of the criminal laws, ib. 
 necessity of these laws, ib. 
 their choice, and establishment, 81, 82. 
 Of the degree of punishment, 82. 
 not to be beyond what safety of state 
 
 requires, ib. 
 
 what to be considered in proportion- 
 ing of it, ib. 
 
 as nature of crime itself, ib. 
 opportunities of committing it, ib. 
 degree of injury done to the public, ib. 
 consequences of unnecessary severity, ib. 
 importance of enforcing the laws, ib. 
 
 RANSOM, 
 
 of prisoners, 357. 
 
 right to detain till ransomed, ib. 
 
 time of ransom, ib. 
 
 generally settled by treaty, ib. 
 
 right of sovereign to enforce payment of 
 ransom, 414. 
 
 conventions relating to the ransom, 419. 
 
 right to demand, may be transferred, 16. 
 
 should not be in an unlimited manner, ib. 
 
 what may annul the convention made 
 for the rate of the ransom, ib. 
 
 ransom proportionate to rank of officer, 
 ib. 
 
 concealment of rank, compact may be 
 annulled, ib. 
 
 prisoner dying before payment of ran- 
 som, ib. 
 
 ransom when, or not due, 419, 420. 
 
 instances, ib. 
 
 prisoner released on condition of pro- 
 curing the release of another, 420. 
 
 when bound to return, ib. 
 
 where prisoner is retaken before pay- 
 ment of ransom, ib. 
 
 his liability to pay second ransom, tA. 
 
 otherwise, if rescued before he has ob- 
 tained his liberty, 421. 
 
 of ships, &c., 414, notes. 
 
 prohibited by English laws, 414, note. 
 
 RANSOM BILLS, 
 
 doctrine of, recognised as a part of the 
 law of nations, 414, note. 
 
 REBEL. See CIVIL LAW. 
 who are rebels, 422, 424. 
 sovereign's right against, 422. 
 obligatory on him to perform promises 
 to, 423. 
 
 REGENT, 
 
 when to be appointed, 23. 
 his authority, 27. 
 
 RELIGION. See PIETY. 
 
 Of religion external and internal, 56. 
 denned, ib. 
 
 as an affair of conscience, ib. 
 or an affair of state, ib. 
 Rights of individuals as to, ib. 
 
 should acquire knowledge of God and 
 
 his laws, ib. 
 
 love and respect due to God, ib. 
 liberty of conscience, ib. 
 right to exercise choice in matters of re- 
 ligion, 56, 60. 
 
 importance of this right, 56, 61. 
 is natural and inviolable, ib. 
 should be limited within just bounds, 
 
 56. 
 
 Public establishment of religion, ib. 
 is a matter of state, 57. 
 and under jurisdiction of political au- 
 thority, ib. 
 
 of a nation how established, ib. 
 When as yet no established religion, ib. 
 choice of, how made, ib. 
 duty of nation herein, ib. 
 majority to have choice of, ib. 
 but minority to have liberty to follow 
 
 their own religion, ib. 
 or separate from society of majority, ib. 
 when may sell their property, and re- 
 tire, ib., 106. 
 
 When there is an established religion, 58. 
 nation bound to protect and support, ib. 
 when may make changes therein, ib. 
 of the danger of innovations, ib. 
 who to determine on changes, ib. 
 in case of a new religion spreading, ib. 
 Duties and rights of sovereign with respect to 
 
 religion, ib. 
 
 When no religion established, ib. 
 should establish one by mild and 
 
 suitable means, ib. 
 should not use authority or restraint, 
 
 ib. 
 should prevent introduction of one 
 
 pernicious to morality, &c., ib. 
 When there is an established religion, 59. 
 duty of sovereign to watch over it, ib. 
 should restrain attempts to disturb it, 
 
 ib. 
 
 his right to interfere in such case, ib. 
 how right to be exercised, ib. 
 objects of his care, and the means he 
 
 ought to employ, 60. 
 interior as well as external religion 
 
 should be, ib. 
 Of toleration, ib. 
 
 of all tenets advisable, ib. 
 unless dangerous to morality, 16. 
 Of prince's duty, when nation resolved to 
 
 change its religion, ib. 
 cannot constrain them therein, 61. 
 but may exercise his own religion, ib.
 
 646 
 
 INDEX. 
 
 RELIGION (continued). 
 
 difference of, does not deprive him of 
 his crown, 61. 
 
 duties and rights of the sovereign recon- 
 ciled with those of the subjects, 
 ib. 
 
 Right of sovereign to have inspection over 
 matters of religion, 62. 
 
 should have inspection of all relating 
 thereto, ib. 
 
 also over those who teach it, ib. 
 
 its exercise advantageous to the state, 
 ib. 
 
 a prerogative of majesty, ib. 
 
 right of nation to delegate this power, 
 
 *" 
 
 sovereign's duty to prevent abuse of 
 
 received religion, 63. i 
 his authority over ministers of religion, 
 
 ib. 
 
 this authority described, 63, 64. 
 cannot compel ecclesiastic to preach 
 
 against his conscience, 64. 
 duty of ecclesiastic herein, ib. 
 rule to be observed with respect to eccle- 
 siastics, ib. 
 
 should enjoy a large portion of es- 
 teem, ib. 
 
 should have no authority, ib. 
 or claim independence, ib. 
 should be subject to the public powers, 
 
 ib. 
 and amenable to sovereign for their 
 
 conduct, ib. 
 
 duty of sovereign towards, 16. 
 should cause them to be respected, 
 
 ib. 
 
 and invest them with authority suffi- 
 cient to discharge their functions, 
 ib. 
 
 but should prevent abuse of that au- 
 thority, ib. 
 clergy when formidable as a separate 
 
 body, 16. 
 
 Recapitulation of reasons establishing sove- 
 reign's rights in matters of religion, 
 64, 65. 
 
 authorities and examples, 65. 
 Pernicious consequences of denying sovereign 
 
 to be head of the church, ib. 
 abases particularized, ib. 
 
 1. Power of the popes, 66. See POPE- 
 
 RY. 
 
 extent thereof, 66, 67. 
 pernicious effect of, in a foreign court, 
 
 67. 
 instances, ib. 
 
 2. Of important employments conferred by 
 
 a foreign power, '68. 
 disposal of dignities, ib. 
 a violation of a nation's right, ib. 
 submission thereto condemned, ib. 
 
 RELIGION (continued) 
 
 3. Powerful subjects depending on fo- 
 
 reign court, 68, 69. 
 abuse in this respect, 69.^ 
 
 4. The celibacy of their priests, ib. 
 for what cause invented, ib. 
 practice of, condemned, 70. 
 
 of convents, 69, 70. 
 marriage advocated, 70. 
 
 5. Enormous pretensions of the clergy, 
 
 ib. 
 
 of their assumed pre-eminence, ib. 
 its prejudice on good order, ib. 
 
 6. Independence of, 71. 
 immunities of, t'6. 
 
 attempt of, to escape from political 
 
 authority, ib. 
 claim their immunities from God, ib. 
 
 7. Immunities of church possessions, 
 
 72, 73. 
 
 when state may exempt them, 72. 
 limit of exemption, t'6. 
 
 8. Excommunication of men in office, 
 
 73. 
 
 9. And of sovereigns themselves, 74. 
 instances of this abuse, 74, 75, in note. 
 
 10. The clergy drawing every thing to 
 
 themselves, and disturbing the 
 order of justice, 75, 76 
 
 11. Money drawn to Rome, 76 
 
 12. Laws and customs contrary to the 
 
 welfare ot states, Hi. 
 consequences of trusting same to the 
 
 clergy, ib. 
 pernicious effects thereof on the state, 
 
 ib. 
 Right of nations to interfere with religion 
 
 of each other, 157, 158. 
 no nation can be restrained with re- 
 spect to, 158. 
 
 with respect to missionaries, ib, 
 what a sovereign may do in favour of 
 those professing his religion in an- 
 other country, 159. 
 
 RENUNCIATION, 
 what, 25. 
 
 validity and effect of, 25, 26. 
 REPRISALS, 
 what, 283. 
 
 their nature, 283, 284. 
 accomplishment of, 284. 
 what required to render them lawful, 
 
 ib. 
 must be on just grounds before allowed, 
 
 ib. 
 upon what effects reprisals made, t'6. 
 
 and note. 
 
 general reprisals, what, 285, note, 
 state should compensate those who puffer 
 
 by, 285. 
 sovereign alone can order reprisals, ib.
 
 INDEX. 
 
 647 
 
 REPRISALS (continued). 
 
 termed by the French letters of marque, 
 
 285. 
 against a nation for the actions of its 
 
 subjects, ib. 
 
 but not in favour of foreigners, 16. 
 those who have given cause for, ought 
 
 to indemnify the sufferers, 286. 
 what deemed a refusal to do justice, 286, 
 
 287. 
 
 arrest of subjects by way of, 287, 481. 
 instances of, ib. 
 
 our right against those who oppose re- 
 prisals, 287. 
 just reprisals do not afford a just cause 
 
 of war, 288. 
 how we ought to confine ourselves to 
 
 reprisals, or proceed to extremities, 
 
 288, 289. 
 
 wnen latter course preferable, 289. 
 of reprisals during war, 348. 
 whether may be made on ambassadors, 
 
 Ac., 481, 482. 
 use of poison not to be adopted by way 
 
 of reprisal, 360. 
 
 REPUBLIC. See GOVERNMENT. 
 what, 2. 
 
 empire intrusted by nation to a certain 
 number of citizens, 2. 
 
 RESIDENTS, 
 
 who, 460. 
 RETALIATION OF INJURIES, 282, 283, 
 
 317. 
 
 RETORTION, 283. 
 REVENUE. See PROPERTY. 
 
 of the public revenues, 110. 
 
 at whose disposal, ib. 
 
 application of, ib. 
 
 RIGHTS. See OBLIGATIONS AND RIGHTS. 
 RIVERS, STREAMS, AND LAKES, 
 
 right of nation thereto, 120. 
 
 of river separating two territories, 76. 
 
 rules respecting, ib. 
 
 1. where nation takes possession of 
 
 country bounded by, t'6. 
 priority of possession gives right, ib. 
 
 2. and appropriates to itself the use 
 
 thereof, 76. 
 
 3. where possession doubtful, t'6. 
 
 4. where possession long and undis- 
 
 puted, 120, and note. 
 
 5. where settled by treaty, 120. 
 
 of the bed of a river dried up, or taking 
 
 another course, 121. 
 
 the bed of, belongs to owner of river, t'6. 
 of the right of alluvion, t"6. 
 distinction between, and avulsion, t'6. 
 whether it produces any change in the 
 
 right to the river, t'6. 
 where bed of changed, 122. 
 
 RIVERS, &c. (continued). 
 
 right of soil of abandoned course, in 
 
 whom, 122. 
 of works tending to turn the current of, 
 
 ib. 
 
 when, or not lawful, ib. 
 or in prejudice of right of others, ib. 
 rules in relation to interfering rights, ib. 
 where right of fishery exists, ib. 
 in cases of navigation, ib. 
 of lakes, 123, 124. See LAKES. 
 proprietors of, who, 123. 
 of the increase of lakes, ib. 
 of land formed on banks of lakes, 125. 
 where bed of lake dried up, ib. 
 jurisdiction over lakes and rivers, ib. 
 
 SAFE CONDUCT, 
 what, 416. 
 
 distinction between, and passport, ib. 
 right of sovereign to grant, ib. 
 when may delegate right, ib. 
 is not transferable, ib. 
 of safe conduct granted for certain 
 
 effects, ib. 
 when those effects may be removed by 
 
 others, ib. 
 
 extent of the promised security, ib. 
 duty of party granting it, 417. 
 of the right derived thereby, ib. 
 whether includes baggage and domestics, 
 
 ib. 
 
 practice to specify particulars, ib. 
 granted to father does not include his 
 
 family, ib. 
 
 when to party and his retinue, ib. 
 term of safe conduct, 418. 
 of person forcibly detained beyond the 
 
 term, ib. 
 of respite in case of forcible detainer or 
 
 sickness, ib. 
 does not expire at death of him who 
 
 gave it, ib. 
 
 how may ba revoked, ib. 
 time allowed in case of revocation, ib. 
 SAFE-GUARD. See ENEMY. 
 
 what, and when granted, 369. 
 SEA, 
 
 its use, 125. 
 
 dominion over, 125, in note. 
 
 whether it can be possessed, 125. 
 
 no one can appropriate to himself the 
 
 use of, ib. 
 attempt to exclude another does it an 
 
 injury, 126. 
 
 attempt an injury to all nations, t'6. 
 exclusive right may be acquired by 
 
 treaties, ib. 
 
 but not by prescription, or long usage, 127. 
 unless by virtue of a tacit agreement, t'6. 
 but sea near the coasts may become a 
 property, t'6.
 
 648 INDEX. 
 
 8EA (continued). 
 
 reason for appropriating the sea near the 
 coast, 128. 
 
 how far this possession may extend, 
 128, 129. 
 
 of shores and ports, 129. 
 
 of bays and straits, 129, 130. 
 
 of straits in particular, 130. 
 
 of tax in right of passage, ib. 
 
 of the right to wrecks, ib. 
 
 when allowed, ib. 
 
 to whom belonging, ib. 
 
 of a sea included within the territories 
 of a nation, 130, 131. 
 
 of the jurisdiction over the sea, 131. 
 
 empire and domain over, not insepara- 
 ble, ib. 
 
 of children born at, 102. See COUNTRY. 
 SEARCH. See NEUTRALITY. 
 
 right of, in neutral ships, 338, 339. 
 
 consequences of refusal, ib. 
 
 usually settled by treaty, ib. 
 
 SEPARATION, 
 
 of a nation from the state of which it is 
 
 a member, 96. 
 when allowed, 96, 97. 
 when conquered or abandoned, 97. 
 mere failure of protection not sufficient, 
 
 96, 97. 
 
 SETTLEMENT. Sec COUNTRY. 
 
 what, 103. 
 
 when may be changed, ib. 
 
 distinction between, and habitation, ib. 
 
 of natural or original settlement, ib. 
 
 acquired settlement, what, ib. 
 SHORE, 129. Sec SEA. 
 
 SLAVERY, 
 
 of the right to condemn prisoners to, 
 356, 357. See PRISONER. 
 
 SOCIETY. See LAW OF NATIONS. 
 
 of the establishment of natural society, 
 
 lix. 
 
 its necessity, ib. 
 
 its duties and obligations, Ix. IxL 
 its object, Ixi. 
 general laws deduced therefrom, Ir. Ixi. 
 
 IxiL 
 benefit of others, without prejudice to 
 
 ourselves, Ixi. Ixii. 
 the liberty of nations, Ixii. 
 effect of this liberty, ib. 
 the right of judging for herself, Ixii. 346. 
 importance of this law, Ixiv. 
 violation of, a ground of war, ib. 
 extent of right, ib. 
 must not affect the liberty of nations, ib. 
 
 SOLDIERS. See WAR. 
 right of raising, 293. 
 f enlistment of, 294. 
 
 SOLDIERS (continued) 
 
 their pay and quarters, 296. 
 of mercenary soldiers, 297. 
 
 SOVEREIGN, 
 
 obligations and rights of, 12. 
 
 who is a sovereign, 1, 12. 
 
 established for the advantage of society, 
 13. 
 
 representative character of, 14. 
 
 origin of, 16. 
 
 is intrusted with the obligations of the 
 nation, ib. 
 
 and invested with its rights, 14. 
 
 rights of in this respect, 14, 15. 
 
 ought to know the nation, 15. 
 
 extent of his power, i&. 
 
 his prerogatives, ib. 
 
 to respect and support the laws funda- 
 mental, ib. 
 
 may change those not fundamental, ib. 
 
 ought to maintain the existing laws, 16. 
 
 in what sense subject to the laws, ib. 
 
 person of, sacred and inviolable, 17. 
 
 nation may curb a tyrant, 17, 18. 
 
 may withdraw itself from his obedience, 
 ib. 
 
 arbitration between, and his subjects, 20. 
 
 obedience which subjects owe to, 21. 
 
 when may resist him, ib. 
 
 appointment of ministers by, 23. 
 
 duty of, in establishing glory of the na- 
 tion, 91. 
 
 of pardoning offenders. See PARDON. 
 
 right of, to grant privilege of safe con- 
 duct, 416. 
 
 duty of state to procure release of, when 
 a prisoner, 436. 
 
 right of, over property of subject. See 
 PROPERTY. 
 
 SOVEREIGN STATE, 
 what, 2. 
 is such, though bound by an unequal 
 
 alliance, ib. 
 
 or by treaty of protection, ib. 
 or to pay tribute, ib. 
 or to do homage, ib. 
 two states subject to the same prince, 
 
 may be, 3. 
 
 so of states forming a federal republic, ib. 
 when it ceases to be such, 4. 
 when under dominion of another, ib. 
 
 SOVEREIGNTY. See alo SOVEREIGN 
 
 STATE. 
 what, 3. 
 
 indivisibility of, 21. 
 is inalienable, 31. 
 
 SPY, 
 
 of the employment of, 375, 376, 358. 
 
 STATE. See NATION, LAW OP NATION, 
 SOVEREIGNTY. 
 

 
 INDEX. 
 
 649 
 
 STATE (continued). 
 Its constitution, 8. 
 
 duties and rights of the nation in re- 
 spect to, ib. 
 
 of the public authority of, ib. 
 
 nation should choose the best constitu- 
 tion, 9. 
 
 of the political, fundamental, and civil 
 laws of, ib. 
 
 of the support of the constitution, and 
 obedience to the laws, 9, 10. 
 
 rights of nation with respect to its con- 
 stitution and government, 10. 
 
 may reform its government, ib. 
 
 and change its constitution, ib. 
 
 of the legislative power of, 11. 
 
 right of, to change the constitution, ib. 
 
 of the caution necessary herein, 12. 
 
 is the judge of all disputes relating to 
 the government, ib. 
 
 no foreign power has a right to interfere, 
 ib. 
 
 several kinds of states, 23. 
 STRAIT. See SEA. 
 
 of refusing passage through, 130. 
 
 of levying tax on vessels passing through, 
 
 ib. 
 
 STREAM, 120, 121. See RIVEE, STREAMS, 
 AND LAKES. 
 
 SUBMISSION. See NATION. 
 of one nation to another, 94. 
 different kinds of, ib. 
 right of citizens on, ib. 
 how treaty of, annulled, 95. 
 distinction between, and incorpora- 
 tion, 96. 
 SUBSIDY. See ENEMY. 
 
 what, 324. 
 SUCCESSIVE OR HEREDITARY 
 
 STATE, 
 what, 24. 
 origin of, ib. 
 
 when may be changed, 25. 
 ought to be kept, 26. 
 of renunciation, 25. 
 when, or not binding, ib. 
 of regents, 27. 
 
 indivisibility of sovereigns, ib. 
 who to decide disputes respecting suc- 
 cession, ib. 
 
 ought not to depend on judgment of a 
 foreign power, 29. 
 
 SUPPLICANT. See COUNTRY. 
 
 who are, 107. 
 
 such as implore protection of a sove- 
 reign against nation they have 
 quitted, ib. 
 
 SURETY. "ie GUARANTY. 
 
 for observance of treaties, 237. See 
 TREATY. 
 
 82 
 
 TAXES, 
 
 imposition and regulation of, 111. 
 
 each citizen to contribute according to 
 his ability, ib. 
 
 nature of the obligation, ib. 
 
 nation may reserve to itself the right of 
 imposing them, ib. 
 
 of money bills, 111, in note. 
 
 of the sovereign who has this power, ib. 
 
 duties of sovereign with respect to, ib. 
 
 application of, 112. 
 TERRITORY. See COUNTRY. 
 TESTAMENTS, 
 
 validity of, how decided, 167. 
 
 how construed in England, 167, note. 
 
 prisoner of war may make, 398. 
 TOLERATION. See RELIGION AND PIETY. 
 
 when universal toleration advisable, 60. 
 
 is so, unless tenets dangerous to mo- 
 rality, ib. 
 TOLL. See PUBLIC WAYS. 
 
 foundation of right to, 44, 115. 
 
 nature and object of imposition of, 44. 
 
 on whom imposed, 44, and note. 
 TRADE, 37 to 43. See COMMERCE. 
 TREATIES, 
 
 Of alliance and other public treaties, 192. 
 
 nature of treaties, 192, and note. 
 
 of pactions, agreements, and conven- 
 tions, 192. 
 
 by whom treaties are to be made, ib. 
 
 state under protection may make, 193. 
 
 limitation of right, ib. 
 
 of treaties concluded by proxies and 
 plenipotentiaries, ib. 
 
 by whom ratified, ib. 
 
 validity of treaties, 194. 
 
 injury does not render them void, ib. 
 
 duty of nations herein, ib. 
 
 if injurious to state, a nullity, ib. 
 
 so, if made for unjust or dishonest pur- 
 poses, 195. 
 
 contraction of, with those who do not 
 profess the true religion, ib. 
 
 obligation of observing treaties, 196. 
 
 necessity of, acknowledged by all na- 
 tions, ib. 
 
 glory to nation resulting therefrom, ib. 
 
 instances, 196. 
 
 violation of, an act of injustice, ib. 
 
 cannot be made contrary to those pre- 
 viously existing, ib. 
 
 how concluded with several nations with 
 same view, 197. 
 
 the more ancient ally entitled to pre- 
 ference, ib. 
 
 no assistance in an unjust war, ib. 
 General division of the subject, 198. 
 
 1. those relating to things already due 
 by the law of nature, ib.
 
 650 
 
 INDEX. 
 
 TREATIES (continued). 
 
 2. those relating to further engagements, 
 189. 
 
 the former described, ib. 
 
 collision of these treaties with duty 
 we owe ourselves, ib. 
 
 treaties by which we barely promise 
 to do no injury, ib. 
 
 utility thereof, ib. 
 
 treaties concerning things not na- 
 turally due, ib. 
 
 these treaties described, ib. 
 
 are equal or unequal, 198, 199. 
 
 of equal treaties, 199. 
 
 obligation of preserving equality in 
 treaties, 199. 
 
 difference between equal and unequal 
 treaties, 200. 
 
 of unequal treaties and alliances, ib. 
 
 are divided into two classes, ib. 
 
 1. where inequality on side of 
 
 stronger power, ib. 
 
 2. where on side of inferior, ib. 
 of unequal alliances, 201. 
 
 either impair the sovereignty, or they 
 
 do not, 16. 
 
 how alliance with diminution of sove- 
 reignty may annul preceding 
 
 treaties. 202, 203. 
 should be avoided as much as possible, 
 
 203. 
 mutual duty of nations with respect 
 
 to unequal alliances, ib. 
 of those where inequality on the side 
 
 of the more powerful party, 203, 
 
 204. 
 how inequality may be conformable 
 
 to the law of nature, 204. 
 when imposed by way of punishment, 
 
 205. 
 
 of personal and real treaties, ib. 
 personal alliance, what, ib. 
 expires with him who makes it, ib. 
 real alliance, what, ib. 
 always attaches to the state, ib. 
 unless limited, ib. 
 distinctions between, to be observed, 
 
 ib. 
 
 general rules respecting, ib. 
 naming contracting parties in, does 
 
 not make it personal, ib. 
 alliance by a republic is real, ib. 
 subsists, though form of government 
 
 changed, 206. 
 of treaties concluded by kings or other 
 
 monarchs, ib, 
 of perpetual treaties, ib. 
 of those for a certain time, ib. 
 of treaties for king and his successors, 
 
 ib. 
 treaties for the good of the kingdom, 
 
 207. 
 
 TREATIES (continued). 
 
 presumption, how to be founded in 
 
 doubtful cases, 207. 
 instances in illustration, 207, 208. 
 obligations and rights resulting from 
 a real treaty pass to the suc- 
 cessor, 208. 
 hut -general custom for successor to 
 
 renew them, ib. 
 of treaties accomplished once for all 
 
 and perfected, 208, 209. 
 of those accomplished in part, 209,210. 
 personal alliance expires if one of 
 
 parties ceases to reign, 211. 
 of those in their own nature personal, 
 
 211. 
 where concluded for defence of king 
 
 and royal family, ib. 
 when binding where king deprived of 
 
 his crown, ib. 
 distinction when dethroned by rebels, 
 
 ib. 
 
 and lawfully dethroned, ib. 
 instances of Louis 4th and king 
 
 William, 212. 
 obligation of a real alliance where the 
 
 king is dethroned, ib. 
 
 Of the dissolution and renewal of treaties, ib. 
 expiration of alliances made for a limited 
 
 time, 213. 
 
 of the renewal of treaties, ib. 
 of the tacit renewal of, 213, 214. 
 how dissolved when violated by one of 
 
 contracting parties, 214. 
 violation of one treaty does not cancel 
 
 another, ib. 
 when violation of part cancels the whole, 
 
 215. 
 is void by the destruction of one of the 
 
 contracting parties, 216. 
 but not by state placing itself under pro- 
 tection of another, ib. 
 of treaties dissolved by mutual consent, 
 
 217. 
 Of public conventions in nature of, 218. Sec 
 
 CONVENTION. 
 
 when made by sovereigns, ib. 
 of those by subordinate powers, ib. 
 of treaties concluded by public person 
 
 not having sufficient power, 219. 
 of the agreement called Sponsio, ib. 
 state not bound thereby, 220. 
 effect of, on promiser, ib. 
 sovereign, how far bound by, 223. 
 Of the faith of treaties, 229. 
 what is sacred among nations, ib. 
 treaties are held sacred between nations, 
 
 ib. 
 faith of treaties is sacred, ib, 
 
 and he who violates them violates the 
 
 law of nations, ib. 
 right of nations against violator, 230.
 
 INDEX. 
 
 651 
 
 TREATIES (continued). 
 
 violation of, by the popes, 230. 
 
 this abuse authorized by princes, 231. 
 
 use of an oath in treaties, 232. 
 
 does not constitute the obligation, t'6. 
 
 or produce new obligations, ib. 
 
 or change the nature of them, ib. 
 
 it gives no pre-eminence to one treaty 
 
 above another, ib. 
 cannot give force to a treaty invalid, 
 
 233. 
 
 of asseverations, 232. 
 violation of, disgraceful, ib. 
 faith of treaties does not depend on the 
 
 difference of religion, 233. 
 precautions to be observed in wording 
 
 of, 233. 
 
 of subterfuges in treaties, 234. 
 an evidently false interpretation incon- 
 sistent with faith of treaties, ib. 
 faith tacitly pledged, ib. 
 Of securities given for observance of, 235. 
 guaranty, what, ib. 
 gives the guarantee no right to interfere, 
 
 ib. 
 nature of the obligation it imposes, 
 
 236. 
 cannot impair the rights of a third party, 
 
 ib. 
 
 duration of the guaranty, ib. 
 of treaties with surety, 237. 
 of pawns, securities, and mortgages, 
 
 ib. 
 right of nation over what she holds as a 
 
 pledge, 237, 238. 
 how obliged to restore it, 238. 
 how she may appropriate it, ib. 
 of hostages, 238, 239. See HOST- 
 AGE. 
 
 Of the interpretation of treaties, 244. 
 necessity of establishing rules of, ib. 
 general observations herein, 244, and 
 
 notes, 
 maxims respecting, ib. 
 
 1st, not allowable to interpret what 
 has no need of interpretation, 
 ib. 
 
 2d, if he who could and ought to 
 have explained himself, and has 
 not done it, it is to his own 
 detriment, 245. 
 
 3d, neither of contracting parties to 
 interpret according to his own 
 fancy, ib. 
 
 4th, what is sufficiently declared 
 is to be taken for true, 245, 
 246. 
 6th, interpretation ought to be made 
 
 according to certain rules, 246. 
 faith of treaties lays an obligation to 
 
 follow these rules, 247. 
 general rule of interpretation, ib. 
 
 TREATIES (continued). 
 
 should be conformable to common usage, 
 
 248. 
 how ancient treaties to be interpreted, 
 
 ib. 
 
 of quibbles on words, 249. 
 rule for avoiding of, ib. 
 mental reservations not allowed, 16. 
 technical terms, how interpreted, 250. 
 of terms whose signification admits of 
 
 degrees, ib. 
 
 of figurative expressions, ib. 
 of equivocal expressions, 251. 
 rule for latter cases, ib. 
 not necessary to give a term the same 
 
 sense everywhere in the same deed, 
 
 252. 
 
 absurd interpretations should be re- 
 jected, ib. 
 
 absurdity described, and instances, ib. 
 interpretation rendering treaty void not 
 
 to be admitted, 253. 
 obscure expressions, how interpreted, 
 
 254. 
 interpretation founded on the connection 
 
 of the discourse, ib. 
 or drawn from the connection, &c. of 
 
 the things themselves, 255. 
 to be founded on the reason of the deed, 
 
 256. 
 
 how, where many reasons have con- 
 curred to determine the will, 257. 
 what constitutes a sufficient reason for 
 
 an act of the will, ib. 
 extensive interpretation founded on the 
 
 reason of the act, ib. 
 of frauds tending to elude laws and 
 
 promises, 258. 
 
 of restrictive interpretations, 259. 
 use of, to avoid falling into absurdities, 
 
 ib. 
 
 or into what is unlawful, ib. 
 or into what is too severe and burthen- 
 some, 260. 
 how it ought to restrict the signification 
 
 agreeably to the subject, ib. 
 when change happening in the state of 
 
 things forms an exception, 261. 
 interpretation of, in unforeseen cases, 
 
 262. 
 reasons arising from the possibility and 
 
 not the existence of the thing, t'6. 
 where expressions capable of an ex- 
 tensive and a limited sense, 263. 
 of things favourable and things odious, 
 
 ib. 
 favourable, when tending to the common 
 
 advantage, 264. 
 
 odious, when to the contrary, ib. 
 so, of things useful to human society, 
 
 265. 
 whatever contains a penalty is odious, ib.
 
 652 
 
 INDEX. 
 
 TREATIES (continued). 
 
 so, whatever renders a deed void 
 
 odious, 265. 
 all tending to change the present stat 
 
 of things is favourable, ib. 
 the contrary is odious, ib. 
 of things of a mixed nature, 266. 
 interpretation of favourable things, ib. 
 rules respecting, ib. 
 
 1. utmost latitude to be given to term 
 
 used according to common usage 
 ib. 
 
 2. terms of art to receive the fulles 
 
 interpretation, 267. 
 
 3. but not in an improper signification 
 
 unless from necessity, 267. 
 
 4. signification to be restricted, where 
 
 leading to absurdity, ib. 
 6. to be restricted where equity or 
 great common advantage requires 
 it, ib. 
 
 interpretation of things odious, ib. 
 should be limited, 267, 268. 
 examples, 268, 269. 
 how deeds of liberality should be inter 
 
 preted, 270. 
 where a collision of laws and treaties 
 
 ib. 
 
 General rules respecting interpretation of, 
 ib. 
 
 1. where bare permission incompatible 
 
 with prescription latter preferred, 
 271. 
 
 2. treaty permitting, to give way to that 
 
 forbidding, ib. 
 
 3. so, that which ordains, to give way to 
 
 that which forbids, ib. 
 
 4. where collision between two affirma- 
 
 tive treaties, latter to be preferred. 
 ib. 
 when otherwise, 16. 
 
 5. of two laws or conventions, the less 
 
 general preferred, 272. 
 
 6. treaty not admitting of delay, to be 
 
 preferred to that to be done at 
 another time, 273. 
 
 7. of two competing duties, the most 
 
 important, &c., preferred, ib. 
 
 8. of two promises, the party promised 
 
 to elect, 274. 
 
 but in case of doubt, promiser to 
 perform that in which most strongly 
 bound, Hi. 
 
 9. treaty confirmed on oath to be 
 
 preferred to one not sworn to, 
 ib. 
 
 10. treaty enjoined under a penalty, to be 
 preferred to that not enforced by 
 one, ib. 
 
 no, of that enjoined under a greater 
 penalty to that enforced by a lesser, 
 
 TREATIES OF PEACE, 432. See PEAC*. 
 TRIBUTARY STATE. See STATE. 
 
 what, 3. 
 
 is a sovereign state, 3. 
 TROOPS, 
 
 right of levying, 294. 
 
 enlistment of, 294, 298. 
 TRUCE. V &eWAR. 
 
 what, 404. 
 
 does not terminate the war, ib. 
 
 is partial or general, ib. 
 
 general truce for many years, ib. 
 
 how concluded, ib. 
 
 sovereign's faith engaged in, 406. 
 
 when truce begins to be obligatory, ib. 
 
 publication of, ib. 
 
 subjects contravening the truce, 16. 
 
 violation of, 407. 
 
 stipulation of penalty against infractor 
 of, ib. 
 
 time of the truce, ib. 
 
 effects of a truce, 408. 
 
 what or not allowed during continuance 
 of, t6. 
 
 rules respecting, 408, 409. 
 
 1. each party may do at home what 
 
 they have a right to do in time 
 of peace, 409. 
 
 2. not to take advantage of the truce 
 
 in doing what hostilities would 
 have prevented, ib. 
 
 as continuing the works of a siege, 
 16. 
 
 or repairing breaches, &c., ib. 
 
 or introducing succours, 410. 
 
 distinctions herein, ib. 
 
 as army retreating during a sus- 
 pension of hostilities, ib. 
 
 3. nothing to be attempted in con- 
 
 tested places, but every thing to 
 be left as it was, 411. 
 but places quitted, &c., by enemy 
 
 may be possessed, ib. 
 subjects inclined to revolt not to be 
 
 received during the truce, 16. 
 much less to be solicited to treason, 
 
 Ik 
 persons or effects of enemy not to 
 
 be seized during truce, t'6. 
 right of postliminium during a truce, ib. 
 intercourse allowed during, ib. 
 of persons detained by insurmounta- 
 ble difficulties after expiration of, 
 412. 
 of adding particular conditions to truces, 
 
 ib. 
 at expiration of, war renewed without 
 
 fresh declaration, ib. 
 TRUTH, 
 
 when bound to speak it to an enemy, 
 373.
 
 INDEX. 
 
 653 
 
 USUCAPTION. See PRESCRIPTION. 
 what, 187, and note. 
 
 VAGRANT. See COUNTRY. 
 who are vagrants, 103. 
 those who have no settlements, ib. 
 children of, have therefore no country, 
 
 ib. 
 
 when country of vagrant that of child, ib. 
 as where vagrant has not renounced his 
 
 natural settlement, ib. 
 
 VOLUNTARY LAW, 
 
 what, Ixiv., and note. 
 
 founded on a presumed consent, Iriv. 
 
 maxim concerning use of, Ixvi. 
 
 VOLUNTEERS, 401. See WAR. 
 
 WAR, 
 Definition of, 291. 
 
 is public or private, ib. 
 
 defensive or offensive, 293. 
 
 right of making, 291. 
 
 belongs only to the sovereign power, 
 
 292, 293. 
 
 though sometimes otherwise, 292. 
 right of kings of England to make, 292, 
 
 293, and note. 
 
 Of the instruments of war, 293. 
 
 what deemed such, ib. 
 
 troops, officers, &c., ib. 
 
 arms, artillery, &c., ib. 
 
 right of levying troops, 294. 
 
 belongs to the sovereign power, ib. 
 
 is one of the prerogatives of majesty, 
 ib. 
 
 though right sometimes limited, ib. 
 
 obligations of citizens to serve and de- 
 fend the state, ib. 
 
 of the enlistment or raising of troops, 
 ib. 
 
 of the exemptions from carrying arms, 
 295. 
 
 who exempt, as magistrates, clergy, &c., 
 295, 296. 
 
 of soldiers' pay and quarters, 296. 
 
 of hospitals for invalids, ib. 
 
 of mercenary soldiers, 297. 
 
 who are such, ib. 
 
 possession of, how far lawful, ib. 
 
 what observed in their enlistment, 298. 
 
 service of, voluntary, ib. 
 
 must not be by stratagem or force, ib. 
 
 of enlistment in foreign countries, ib. 
 
 permission of sovereign requisite, 298. 
 
 none but volunteers to be enlisted, i&. 
 
 of enticing away subjects, ib. 
 
 nature of crime and punishment, ib. 
 
 when a cause for declaring war, ib. 
 
 of the obligation of soldiers, 299. 
 
 to take oath of fidelity, ib. 
 
 are not to desert the service, ib. 
 
 punishment of deserters, ib. 
 
 WAR, (continued). 
 
 of solicitations to desert, 373. 
 of military laws, ib. 
 necessity of, in army, ib. 
 military code of, what, ib. 
 of military discipline, ib. 
 importance of, considered, ib. 
 of subordinate powers in war, ib, 
 their authority, ib. 
 extent and limit thereof, ib. 
 promises of, how far binding on sove- 
 reign, 300. 
 
 when binding only on themselves, i&. 
 of the assumption of power by, ib. 
 their responsibility, ib. 
 how they bind their inferiors, 301. 
 Of the just causes of war, ib. 
 should not be undertaken without very 
 
 cogent reasons, ib. 
 justificatory reasons and motives for 
 
 making, 302. 
 explanation hereof, ib. 
 what in general a just cause of war, ib. 
 what unjust, 16. 
 of the object of war, ib. 
 what motives requisite in undertaking 
 
 war, 303. 
 
 proper motives, what, ib. 
 vicious motives, what, ib. 
 of war undertaken upon just grounds, 
 
 though motives vicious, ib. 
 pretexts, what, 304. 
 of war undertaken merely for advantage. 
 
 * 
 of nations making war without reason 
 
 or apparent motives, 305. 
 are considered enemies to mankind, ib. 
 right of nations to punish them, ib. 
 how defensive war is just or unjust, ib. 
 nation has no right to defend an unjust 
 
 war, 305, 307. 
 her duty under such circumstances, 
 
 305, 313. 
 how defence may become just, 305, 313, 
 
 316. > 
 
 offensive war, how far just in an evident 
 
 cause, 305. 
 requisites to be considered, 306. 
 
 1. a right to demand something of 
 
 another nation, 306, 315. 
 
 2. the inability to obtain it otherwise 
 
 than by force of arms, 306, 315, 
 320. 
 
 in a doubtful cause, 306. 
 when to be resorted to, ib. 
 war cannot be just on both sides, i6. 
 though sometimes reputed lawful, 306, 
 
 320. 
 
 of war undertaken to punish a nation, 307. 
 should be founded on right and necessity, 
 
 ib. 
 
 duty of nation at fault, ib. 
 SB*
 
 654 
 
 INDEX. 
 
 WAR (continued). 
 
 aggrandizement of a neighbouring power, 
 308. 
 
 when no right to make war, ib. 
 
 when appearance of danger gives the 
 right, 309. 
 
 when other nations may check aggrand- 
 izement of a state, 310, 311. 
 
 other allowable means of defence against 
 a formidable power, 311. 
 
 political equilibrium, what, 311, 312. 
 
 ways of maintaining it, 312. 
 
 how he who destroys it may be re- 
 strained, 312, 313. 
 
 behaviour allowable towards a neighbour 
 
 preparing for war, 313. 
 Of the declaration of war, 315. 
 
 of the necessity thereof, ib, 
 
 what it should contain, ib. 
 
 is simple or conditional, 316. 
 
 right to make, ceases on offer of equi- 
 table conditions, ib, 
 
 formalities of, ib. 
 
 publication of, ib. 
 
 necessity hereof, ib. 
 
 defensive war requires no declaration, ib. 
 
 when may be omitted in an offensive 
 war, i&. 
 
 or against enemies' associates, 331. 
 
 not to be omitted by way of retaliation, 
 317. 
 
 unnecessary at expiration of a truce, 
 412. 
 
 should be made where truce of long 
 
 duration, ib. 
 Time of declaration of war, 317. 
 
 need not be till army has reached the 
 frontiers, ib. 
 
 or has entered the enemy's territories, 
 ib. 
 
 must precede acts of hostility, ib. 
 Duty of inhabitants on entry of foreign army 
 before declaration, ib. 
 
 commencement of hostilities, ib. 
 
 conduct to be pursued towards subjects 
 of enemy in country at time of 
 declaration, 318. 
 
 freedom of persons and property, ib. 
 
 time allowed for departure, ib. 
 
 extension of that time, when, ib. 
 
 when to be treated as enemies, ib. 
 Publication of the war and manifestoes, ib. 
 
 necessity for, among neutrals, ib. 
 
 how published, 319. 
 
 manifestoes, what, ib. 
 
 what they should contain, ib. 
 
 decorum and moderation to be observed 
 
 in, ib. 
 Of lawful war in due form, ib. 
 
 requisites of, ib. 
 
 by whom to be made, ib. 
 
 also termed a regular war, 320. 
 
 WAR (continued). 
 
 how far noticed in courts of justice, 320, 
 
 in note. 
 
 distinctions between lawful and un- 
 lawful war, 320. 
 
 between unlawful and informal, ib. 
 grounds of distinction, 320, 321. 
 Of the enemy, and things belonging to him, 
 
 ib. See ENEMY. 
 
 Of neutrality, 332. See NEUTRALITY. 
 Of the rights of nations in war, 346, and 
 
 note. 
 
 general principles of, 346. 
 difference between what may be done 
 
 of right, and what merely allowed, 
 
 346. 
 the right to weaken an enemy by 
 
 every justifiable method, 347, 353, 
 
 364. 
 the right over the enemy's person, 
 
 347. 
 
 origin and limitation of this right, ib. 
 of giving quarter, and the offer to ca- 
 pitulate, 348. 
 enemy not to be killed after ceasing to 
 
 resist, 348, 350, 354. 
 case when quarter may be refused, 348, 
 
 361. 
 enemy violating the laws of war, 348, 
 
 350, 354, 361. 
 of the governor of a town making an 
 
 obstinate defence, 349, 350. 
 Reprisals, what, 348. See REPRISAL. 
 a system of retaliation, 348. 
 examples of, 349, and note, 
 what prisoners not to be the subject of, 
 
 349, 350. 
 
 Fugitives and deserters, 351. 
 when may be put to death, ib. 
 of the clemency to be shown to them, 
 
 ib. 
 
 capitulation with respect to, ib. 
 Women, children, aged, and the sick, ib. 
 not to be put to death, ib, 
 
 unless guilty of acts of hostility, 352. 
 Clergymen, men of letters, l;c., ib. 
 also exempted from death, ib. 
 when not, ib. 
 peasants and those not carrying arms, 
 
 352, 353. 
 
 likewise exempt, ib. 
 their freedom in general, 16. 
 when may have restraints imposed on 
 
 them, 353. 
 
 Of prisoners of tear, ib. See PIV>ONEB. 
 right of making, ib. 
 its object, ib. 
 not to be put to death, 348, 354, 
 
 355. 
 
 treatment of, 354, and note, 
 of prisoners who cannot be fed, 355. 
 of condemning them to slavery, 356.
 
 INDEX. 
 
 655 
 
 WAR (continued). 
 
 exchange and ransom of, 357. See RAN- 
 SOM. 
 
 object of, 357. 
 when it takes place, ib. 
 how regulated in general, ib. 
 when exchange may be refused, ib. 
 of providing liberty of, in treaty, ib. 
 right of nation to prohibit ransom of, 
 
 357, 358. 
 of assassinating and poisoning of, 358 to 
 
 360. 
 
 meaning of assassination, 359. 
 is contrary to the law of nature, 360, 
 
 361. 
 guilt of sovereign resorting thereto, 
 
 361. 
 
 how punished, ib. 
 use of poison not to be adopted by 
 
 way of reprisal, 360. 
 
 Of the right of war with regard to things 
 belonging to the enemy, 364. See 
 ENEMY. 
 Of the sovereign who wages an unjust war, 
 
 378. 
 
 an unjust war gives no right, ib. 
 guilt of him who undertakes it, 378, 379. 
 his obligations, 379. 
 Of the effects of a regular war, 381. 
 is bound to make reparation, ib. 
 nations not rigidly to enforce the law of 
 
 nature against each other, ib. 
 should observe the voluntary law of, 
 
 382. 
 
 reason for this, ib. 
 regular war, its effects, ib. 
 whatever permitted to one party, is so 
 
 to the other, 382, 383. 
 effect of the voluntary law in an unjust 
 
 war, 383. 
 
 Of acquisitions by war, 384. 
 war, when a lawful mode ofacquisition,t'6. 
 conditions necessary to render it just, 
 
 384, 385. 
 every acquisition in regular, valid, 385. 
 
 and this though war unjust, ib. 
 exception in case of war destitute of any 
 
 plausible pretext, 385. 
 acquisition of movable property, 385, in 
 
 note. 
 
 of maritime captures, ib. 
 title to, when complete, ib. 
 law as to, in England, ib. 
 acquisition of immovables on conquest, 
 
 386. 
 
 to whom they belong, ib. 
 when title thereto complete, ib. 
 how to transfer them validly, 387, 395. 
 conditions on which a conquered town 
 
 is acquired, 387. 
 
 such rights only acquired as belonged 
 to the conquered sovereign, & 
 
 WAR (continued). 
 
 lands of private persons, 388. 
 
 formerly subject to the right of conquest, 
 
 ib. 
 
 such right now confined to public pro- 
 perty, ib. 
 
 conquest of the whole state, ib. 
 treatment of the conquered state, 388, 
 
 &c., and note, 
 to whom the conquest belongs, 391, 
 
 365, and note. 
 
 the nation entitled thereto, 391. 
 nature of the sovereign's right thereto, 
 
 391, 365, and note, 
 of liberating a people whom the enemy 
 
 have unjustly conquered, 391. 
 when under an obligation to do so, 339, 
 
 and note. 
 Of the right of postliminium, 392. See Jus 
 
 POSTLIMINIUM. 
 
 Of the rights of private persons in war, 399. 
 
 subjects cannot commit hostilities with- 
 out the sovereign's order, ib. 
 
 nature of that order, ib. 
 
 necessity for, and why adopted, 399, 
 400. 
 
 precise meaning of order, 400, and 
 note. 
 
 how interpreted, 400. 
 
 what private persons may undertake, 
 presuming on the sovereign's will, 
 ib. 
 
 of privateers, ib. 
 
 nature of their rights, 400, 401. 
 
 of volunteers, 401. 
 
 their treatment, ib. 
 
 what soldiers and subalterns may do, 
 401, 402. 
 
 obligation of state to indemnify subjects 
 for damages sustained in war, 402, 
 403, and note. 
 
 distinction herein, ib. 
 
 duty of state in this respect, 403, and 
 
 note. 
 
 Of conventions made during war, 404. See 
 TKUCE. 
 
 of truce and suspension of arms, ib, 
 
 distinction between, ib. 
 
 does not terminate the war, ib. 
 
 a truce is either partial or general, ib. 
 
 of a general truce for many years, ib. 
 
 how concluded, 16. 
 
 sovereign's faith engaged in, 406. 
 
 when truce begins to be obligatory, 
 ib. 
 
 publication of, i6. 
 
 subjects contravening of, ib. 
 
 truce not .thereby broken, ib. 
 
 punishment of delinquents, 406, 407. 
 
 violation of, 407. 
 
 its dissolution by breach of one of con- 
 tracting parties, ib.
 
 656 
 
 INDEX. 
 
 WAR (continued). 
 
 stipulation of penalty against infractor 
 of, 407. 
 
 time of the truce, ib. 
 
 necessity of specifying, 407, 408. 
 
 how construed in the absence of such 
 specification, 408. 
 
 general effects of a truce, ib. 
 
 what, or not allowed during continu- 
 ance of it, ib. 
 
 rules respecting, 409. See TRUCE. 
 Of capitulations, 412. 
 
 by whom to be concluded, 412,413. 
 
 clauses thereof, 413. 
 
 necessity for their observance, 414. 
 
 promises made to the enemy by in- 
 dividuals are binding, 414, 371, 
 372. 
 
 instances, 415. 
 
 duty of sovereign to see them fulfilled, 
 414. 
 
 as to contracts in favour of alien ene- 
 mies, 414, note. 
 
 as to promises of ransom, 414. See 
 RANSOM. 
 
 WAR (continued). 
 
 of conventions relating to ransom, 419, 
 
 420. See RANSOM. 
 WAYS, 43. See PUBLIC WATS. 
 
 WHALE FISHERY. 
 
 customary law respecting, Ixiv. note. 
 WILLS,' 
 
 validity of, how decided, 167. 
 
 how construed in England, 167, note. 
 
 prisoner of war may make, 398. 
 
 WORSHIP. See RELIGION. 
 what, 46. 
 
 is either public or private, 61. 
 of the establishment of, 56, 59, 60. 
 how destroyed, 61. 
 of attendance at public worship, ib. 
 how far enjoined by religion, ib. 
 
 WRECKS, 
 
 of the right thereto, 130, and note. 
 
 in what cases allowed, ib, 
 
 only where owner cannot be found, 
 
 ib. 
 to whom they belong, ib. 
 
 THE END. 
 
 E. B. HEARS, STEREOTYPED
 
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