illiiiiJilililiiipiPipl :!t5 i' ^^EUNrVERV.^ ,\^10S- xUlMMW/: •CAL1F0% UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY V^iwMmT^ >&A}fYH3niN^^ IDNVSm" ^\WEUNIVER% .,>;lOSANGELfj^ .kIOSANGEU mm^ w^ajAiNiimv —n f 3K~ ^•UBRARY^ ,...-, ;^ '">WH9Ild .^EUNI\.ua/y. ^.L.^on:.u.Uj^ THE LAW OF NATIONS; OS, PRINCIPLES OF THE LAW OF NATURE, APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOYEREIGNS. FROM THE FRENCH MONSIEUR DE VATTEL. \ihil est, ouim illi principi Deo qui omnem- hunc mundum regit, quod quidcm in terris fiat, acceptius, quaui concilia coetusque homiauin jure sociuti, qua; civitates arpellantur."— Cicero, Som. Scip. FROM THE NEW EDITION, JOSEPH CHITTY, Es( BARRISTEU AT LAW. WITH REFERENCES TO AMERICAN DECISIONS. PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, No. 197 CHESTNUT STREET. 1852. T •^ Ov ^ PREFACE 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 infiniteJy more extended idilibj. 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 Avell-being, happiness, and ultimate and permanent ad- vantage and benefit of all mankind ; and, therefore, ought to be studied by ever?/ gentleman of liberal education, and by yoxdh, in whom the best moral principles should be inculcated. The work should be familiar in the Universities, and m every class above the inferior ranks of society. And, as regards lau'i/crs, 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 sensibl}- and clearly supported and explamed, 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 seutiuients and more important information than he ever derived from any other work. B7J59B J5T 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 resj^ecting 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 November, 1833. ADVERTISEMENT TO THE EDITION OF A. D. 1797. J-N undertaking this ne^Y edition of Monsieur De Yattel's trea- tise, it was not m}^ intention to give Vviiat might strictly be called a new translation. To add the author's valuable notes from the posthumous edition, printed at Neufchatel in 1773, — to correct some errors I had observed in the former version, — and occasionally to amend the language where doubtful or obscure, — were the utmost limits of my original plan. As I proceeded, however, my alterations became more numerous ; but whether they will be acknowledged as amendments, it must rest with the reader to determine. Even if this decision should be more favourable than I have any reason to expect, I lay no claim to praise for my humble efforts, but shall esteem myself very fortunate if I escape the severity of censure for presenting the work to the public in a state still so far short of perfection. Conscious of its defects, I declare, with great 'sincerity, — . . . Veniam pre laude peto, — laudatus abunde, Non fastiditus si tibi, lector, ero. THE EDITOR. London^ May 1, 1797. a2 V PREFACE. i HE Law of Nations, though so noble and important a subject, has not, hitherto, been treated of Avith 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 wliich 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 afiairs and conduct of nations or sovereigns. All treatises, therefore, in which the law of nations is blended and confounded with the ordinary law of nature, are incapable of conveying a distinct idea, or a substantial knowledge of the sacred law of nations. The Romans often confounded the law of nations with the law of nature, giving the name of "the law of nations" {Jus Crcntium) 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, arc well known. " The law of nature," says he, " is that which nature teaches to all animals" :t 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 pcculiarl}'- belongs to each state or civil society. And that law, which na- * Neque vero hoc solum natura, id est, jure f Jus naturalo est, quod natura omnia ani- gontium, ic. Cictro do Offic. lib. iii. c. 5. malia docuit. Instil, lib. i. tit. 2. vii Vm PREFACE. tural reason has established among all mankind, and which is equally ob- served by ;ill people, is called the law of nations, as being law which all nations ful'm .v.* 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."t 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 nothiug more than the law of nations in its particular relation to public treaties, and especially to war. The feciales were the interpreters, the guardianSj and, in a manner, the priests of the public faith.| 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 lie 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 quisque populus ipse sibi jus con- turali juri contraviso. Jure enim natural! stituit, id ipsius proprium civitatis est, voca- onines homines ab initio liberi nascebantur. turquo jus civile, quasi jus proprium ipsius Id. § 2. civitatis : quod vero naturalis ratio inter om- % Feciales, quod fidci publictT3 inter populos nes homines constituit, id apud omnes per- pneerant : nam per hos fiobat ut justum con- acque custoditur, vocaturquo jus gentium, qua- ciperetur bcllum (et inde dosituni), et ut foe- si quo jure omnes gontesutantur. Instit. lib. i. derc fides paci.s constitucretur. Ex his mitte- tit. ii. 2 1. bant, antequanx conciporetur, qui res repote- f Jus autem gentium omni humano generi rent : et per hos ctiaiu nunc fit fccdus. Varro commune c«t; nam usu cxigento ct humanis do Ling. Lat. lib. iv. noccssitatibus, gcntes humana) jura qiiicdiim ^ /)c Jure llilli rt Purin, tran.«lated by 13ar- Mibi constituerunt, Bella etenim orta bunt, et beyrac : Preliminary Discourse, ^ 41. captivitates sccuta) et servitutes, quso sunt na- PREFACE. IX from the rude ore, as it ■svcre, and reducing into regular shape and form, a new and important sulijcct, -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, arc 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 iipply 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, canngt insist on the observance of any but those last-mentioned maxims, reserving the internal law for the direction"\Df 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 tlie common consent of mankind is only the foundation and source of a particular kind of law, called the Ar- bitrary Laio of Nations. Ilobbes, 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 laio of nature into that of man, and that oi states: and the latter is, according to him, Avhat 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 (kx)naturaUs dividi potest in prictates honiinum peisonaloss, lex quani, lo- naturalcm hominum, quaj sola olitimiit diri quentes de liomiuuin singuloruni officio, na- Lex Nutiofr, et naturalem cicilatiim, qua? dici tuuilcm dicimus, applicata totis ci\itatilnis. na- potest /,f.i- GcntiuDi, vulffo autein Jus Cenlitim tionilnis, sive gentibus, vocatur Jtis Gcnlium, appellatur. Pranvpta utriusquc eadem sunt : De Give, c. xiv. § 4. fed quia civitates scmcl institutoe induunt pro- X PREFACE. ho concluded that the maxims of the law of nature and those of the law of nations are precisely the same. Pufiendorf declares that he unreservedly subscribes to this opinion espoused by Ilobbes.* 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,| 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. g 14, note 3. not been able to procure Budacus's work, J In his Elemcnta Phih;g. 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,"! says he, "do not, in their mutual relations to each other, acknowledge any other law than that which Nature herself has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations, as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual 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 theee reasons, it were not more conve- mode is ultimately the same, I have, in prefer- ment to presuppose, in this instance, a know- cnce, 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 ofsuch 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 und 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 Avhat 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 difierent from his, (as will appear to those who are willing to take the trouble of making the comparison,) I confess that I should never have had the courage to launch into so extensive a field, if the celebrated philosopher of Hall had not preceded my steps, and held forth a torch to guide me on my way. Sometimes, however, I have ventured to deviate from the path which he had pointed out, and adopted sentiments opposite to his. I will here quote a few Instances. Monsieur Wolf, influenceid, perhaps, by the example of numerous other writers, has deroted several sections* to the express purpose of treating of the nature o^ pclttimonial 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 Avho possesses the smallest spark of reason and sentiment, in short, of every true citizen. Monsieur AVolf 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 be seen in Book III. § 156. In the very outset of my work, it will be found that I differ entirely from Monsieur Wolf in the manner of establishing the foundations of that species of law of nations Avhich we call voluntary. Monsieur Wolf deduces it from the idea of a great republic {eivitatis 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- f'lse 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 AVolf 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 unnecessar3\ It is true, that as there does not exist in mankind a disposition voluntarily to observe towards each other the rules of the law of nature, they have had re- course to a political association, as the only adequate remedy against the 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. AVe 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 them 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 inilepend- 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, Avhich 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, sliall 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 ccn,sequence ; 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 bo made to undergo in the affairs of nations, and from which the volun- tary hiw of nations is formed, — to prove, I say, that all these alterations are dcducible from the natural liberty of nations, from the attention due ^o 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 tliat 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. XV 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 Voluntai'ii Laio 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 Ave 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 arc 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 aftairs. 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 diiferent 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 the conventional law ; both the one and the other derive all their 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 thc}^ conclude and the customs they adopt. I must content m^'self 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 tho XVI PREFACE. law of nature to tlie affairs and conduct of nations and sovereigns. The study of the hiw of nations supposes therefore a previous knowledge of the ordinary law of nature ; and, in fact, I proceed on the supposition that my readers are already, to a certain degree at least, possessed of that knowledge. Nevertheless, as it is not agreeable to readers in 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 Avith 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 Avill 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 Avritten. 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 hiAT 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 pi'ivate 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 truth. Let us not renounce ■••■• Niliil est quod adhuc de repuLlica putem injuria non posse ; sed hoc verissimum, sine dictum, et quo posMJni longius progredi, nisi sit suinma justitia rempublicam regi non posse. conCrmatum, non rnodo falsum esse istud, sine Cicero, Fragiacut. ex lib. de ]lei)ublica. PREFACE. XVll the pleasing hope that the number of those 'wise conductors of nations ■will one day be multiiDlied ; and in the interim let us, each in his own sphere, exert our best eiforts 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 showing, 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 Laxo of Nations. Sect 1 2 3 4 5 Page What is meant by a nation or state . . . . Iv It is a moral person •••... ih. Definition of the law of nations . . . . . ih. In what light nations or states are to be considered . . Ivi To what laws nations are subject . . . . . ih. 6 In what the law of nations originally consists . . . ih. 7 Definition of the necessary law of nations .... Iviii 8 It is immutable ■•.... ih. 9 Nations can make no change in it^ nor dispense with the obligations arising from it •-.... ih. 10 Society established by nature between all mankind . . . lix 11 And between all nations ...... Ix 12 The object of this society of nations . . . . Ixi 13 General obligation imposed by it . . . . ih. 14 Explanation of this observation . . . . . ih. 15 The second general law is the liberty and independence of nations Ixii 16 Effect of that liberty . . , . . . ih. 17 Distinctions between internal and external, perfect and imperfect obli- gations and rights . . , . . . ih. 18 Equality of nations ...... Ixiii 19 Effect of that equality . . . . . . ih. 20 Each nation is mistress of her own actions, when they do not affect the perfect rights of others . . . . . ih. 21 Foundation of the voluntary law of nations . . . ih. 22 Right of nations against the infractors of the law of nations . . Ixiv 23 Measure of that right ■•.... ih. 24 Conventional law of nations, or law of treaties . . . Ixv 25 Customary law of nations . . . . . ih. 2G General rule respecting that law . . . . . .ih. 27 Positive law of nations ...... Lsvi 28 General maxim respecting the use of the necessary and the voluntary law . . . . . . . . ih. XX CONTENTS. BOOK I. Sect. 1 2 3 4 5 6 7 8 OF NATIONS CONSIDERED IN THEMSELVES. CHAP. I. Of Nations or Sovereign States. Of the state, and of sovereignty . Authority of the body politic over the members Of the several kinds of government . What are sovereign states States bound by unequal alliance or by treaties of 2)rotection Tributary states Feudatory states 9 Two states subject to the same prince 10 States forming a federal republic 11 A state that has passed under the dominion of another 12 Objects of this treatise .... Page 1 ib. . 2 ib. . ib. ib. . 3 ib. . ib. ib. . ib. 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 Eud 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. III. Of the Constitution of a State, and the Duties and Riyhts of a Nation in that respect. 2G Of the public authority . . . . . .8 27 What is the constitution of a state .... ib. 28 The nation ought to choose the best constitution . . .9 29 Political, fundamental, and civil laws .... ib. 30 Support of the constitution, and obedience to the laws . . ih. 31 Kight 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 . . . ih. 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 . . ih. 37 No foreign power has a right to interfere . . . ih. CHAP. IV. Of the Sovereignly 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 . . . . . . . ih. 42 His duty with respect to the preservation and perfection of the nation ih. 43 His rights in that respect . . . . . . ih. 44 He ought to know the nation ..... 15 45 Extent of his power : — prerogatives of majesty . . . ih. 46 The prince is bound to respect and support the fundamental laws ih. 47 He may change the laws not fundamental . . . .16 48 He is bound to maintain and observe the existing laws . . ih. 49 In what sense he is subject to the laws .... ih. 50 His person is sacred and inviolable .... 17 51 But the nation may repress a tyrant, and renounce her allegiance to him ih. 52 Arbitration between the king and his subjects ... 20 53 Obedience which subjects owe to a sovereign . . .21 54 In what cases they may resist him . . . . ih. 55 Ministers . . . . ' . . .23 CHAP. V. Of States, Elective, Successive, or Hereditary, and of (hose 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 . ih. 59 Other origin of that right ■ ■ . . . ih. (50 Other sources, which still amount to the same thing . . 24 (51 A nation may change the order of the succession . . ih. 62 Renunciations . . . . . . .25 63 The order of succession ought commonly to be observed . . 26 64 Regents .... .... 27 65 Indivisibility of sovereignties . . . . . ih. 66 Who are to decide disputes respecting the succession to a sovereignty ih. 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 ....... ih. XXll CONTENTS. CHAP. VI. Principal Objects of a good Government ; and first, to provide for the Neces- sities of the Nation. Sect. Page 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 ih. 74 to prevent the emigration of those that are useful . ih. 75 Emissaries who entice them away .... 34 76 Labour and industry must be encouraged .... ih. CHAP. VII. Of the Cultivation of the Soil. 77 Utility of Agriculture . . . . . .34 78 Regulations necessary in that respect : — for the distribution of land ih. 79 for the protection of husbandmen . . . .35 80 Husbandry ought to be placed in an honourable light . , ih. 81 Cultivation of the soil a natui-al obligation .... ih. 82 Public granaries ...... 36 CHAP. VIII. Of Commerce. 83 Domestic and foreign trade . . . . . .37 84 Utility of domestic trade . . . . . ih. 85 Utility of foreign trade . . . . . . ih. 86 Obligation to cultivate domestic trade .... ih. 87 Obligation to carry on foreign trade . . . .38 88 Foundation of the laws of commerce : — right of purchasing . ih. 89 Right of selling . . . . . . . ih. 90 Prohibition of foreign merchandises .... 39 91 Nature of the right of purchasing . . . . . ih. 92 Each nation to determine for herself how she will carry on commerce ih. 93 How a nation acquires a perfect right to a foreign trade . . 40 94 Simple permission to carry on trade .... ih. 95 Whether commercial rights be subject to prescription . . ih. 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 . . . . • . . ih. CHAP. IX. Of the Care of the Puhlic Ways ; and of Tolls. 100 Utility of highways, canals, &c. . . . . .43 101 Duty of government in that respect .... ih. 102 Its right in that respect . . . . . .44 103 Foundation of the right to demand toll . . • ih. 104 Abuse of that right ...... ih. CONTENTS. xxiii 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 ....... ib. 112 Education of youth . . . . . .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 . . . ib. 132 Duties and rights of the sovereign with respect to religion . 58 133 where there is an established religion . . .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 docs 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. XXiv CONTENTS. Sect. Ptiige 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. 0/ Justice and Polity. 158 A nation is bound to make justice flourish . . .77 159 to establish good laws . ' . . . ih. 160 to enforce them . . . . .78 161 Functions and duties of the prince in that respect . . ih. 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. 160 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 Ptight 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 itself 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. Po^^ 182 Riches . • . . . . . .89 183 Public revenues and taxes . . . • . 90 184 The nation ought not to increase her power by unlawful means . ih. 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 . . ih. 188 Duty of the prince . . . . . . ih. 189 Duty of the citizens ...... 92 190 Example of the Swiss . . . . . . ih. 191 Attacking the glory of a nation is doing her an injury . , 93 CHAP. XVI. Protection sought hy a Nation, and her voluntary suhmission to a Foreign Power. 192 Protection . . . . . . .93 193 Voluntary submission of one nation to another . . 94 194 Several kinds of submission . . . . . ih. 195 Right of the citizens when the nation submits to a foreign power ih. 196 These compacts annulled by the failure of protection . . 95 197 or by the infidelity of the party protected . . ih. 198 and by the encroachments of the protector . . ih. 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 ichich slie 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 .... ih. CHAP. XVIII. 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 . . . ih. 205 Ac((uisition of the sovereignty in a vacant country . .99 206 Another manner of acquiring the empire in a free country . ih. 207 How a nation acquires the property of a desert country . . ih. 208 A question on this subject . . . . . ih. 209 Whether it be lawful to take possession of part of a country inhabited only by a few wandering tribes .... 100 210 Colonies . . . . .101 XXVI ■ CONTENTS. CHAP. XIX. Of OUT Native Country, and various Matters relating to it. Sect. Page 211 What is our country ...... 101 212 Citizens and natives . -. . . . . ih. 213 Inhabitants . . . . . . .102 214 Naturalization ...... ih. 215 Citizens' children born in a foreign country . , . ih. 216 Children born at sea . . . . . . ih. 217 Children born in the armies of the state, or in the house of its minister at a foreign court ...... 103 218 Settlement . . . . . . . ih. 219 Vagrants . . . ... . . ih. 220 Whether a person may quit his country .... ih. 221 How a person may absent himself for a time . . . 105 222 Variation of the political laws in that respect : — they must be obeyed ih. 223 Cases in which a citizen has a right to quit his country . . ih. 224 Emigrants . . . . . . .106 225 Sources of their right ...... ih. 226 If the sovereign infringes their right, he injures them . . 107 227 Supplicants ....... ih. 228 Exile and banishment . . . . . . ih. 229 The exile and the banished man have a right to live somewhere 108 230 Nature of that right . . . . . . ih. 231 Duty of nations towards them . . . . . ih. 232 A nation cannot punish them for faults committed out of her territories 109 283 except such as aifect the common safety of mankind . ih. CHAP. XX. Puhlic, Common, and Private Property. 234 What the Romans called res communes .... 109 235 Aggregate wealth of a nation, and its divisions . . ih. 236 Two modes of acquiring public property .... 110 237 The income of the public property is naturally at the sovereign's dis- posal ....... ih. 238 The nation may grant him the use and property of her common pos- sessions . . . . . . . . ih. 239 or allow him the domain, and reserve to herself the use of them ....... ih. 240 Taxes . . . . . . . .111 241 The nation may reserve to herself the right of imposing them . ih. 242 Sovereign possessing that power . . . . . ih. 243 Duties of the prince with respect to taxes . . . 112 244 Eminent domain annexed to the sovereignty . . . ih. 245 Dominion over public property ..... 113 246 The sovereign may make laws respecting the use of things possessed in common . . . . . . . ih. 247 Alienation of the property of a corporation . . . ih. 248 Use of common property . . . . . .114 249 How each member is to enjoy it .... ih. 250 Ilight of anticipation in the use of it . . . . ih. 251 The same right in another case .... ih. CONTENTS. XXVii Sect. ^ ^ Page 252 Preservation and repairs of common possessions . . 115 253 Duty and right of the sovereign in that respect , . ih. 254 Private property . . . . . . ib. 255 The sovereign may subject it to regulations of police . . ib. 256 Inheritances ....... 116 CHAP. XXI. 0/the Alienation of the Public Property, or the Doynain, 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 .... 122 271 Works tending to turn the current .... ib. 272 or generally prejudicial to the rights of others . . ib. 273 Rules relative to interfering rights .... ib. 274 Lakes ........ 123 275 Increase of a lake •■'... ib. 276 Land formed on the banks of a lake .... 125 277 Bed of a lake dried up ..... ib. 278 Jurisdiction over lakes and rivers .... ib. CHAP, xxni 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 docs 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 maj extend .... ib. 290 Shores and ports . . . . . . .129 291 Bays and straits ...... 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 11. 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 Greneral 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 6ught 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. HI General obligation of nations to carry on mutual commerce . . 143 22 They are bound to favour trade .... 144 23 Freedom of trade . . . . . . . ib. CONTENTS. Xxix Sect. ... Page 24 Right of trading belonging to nations .... I44 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. 38 A nation may appropriate to herself a particular branch of trade . 147 34 Consuls ........ ib. CHAP. III. 0/ the Dlgniti/ and Equality of Nations, — of Titles, — and other Marks of Honour. 35 Dignity of nations or sovereign states .... 149 36 Their equality ....... ih. 37 Precedency . . . . . . . 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 R!(jlit to Security J and the Effects of the Sovereignty and. Independence of Nations. 49 Right to security . . . . . . .154 50 It produces the right of resistance .... ib. 51 and that of obtaining reparation .... 155 52 and the right of punishing .... 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 XXX 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. 0/ 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 tlie 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 ^8 Right of possessing things that have no owner . . . ib. fe9 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. Page 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 ... 101 Foreigners are subject to the laws 102 and punishable according to the laws 103 Who is the judge of their disputes 104 Protection due to foreigners 105 Their duties ..... 106 To what burthens they are subject 107 Foreigners continue members of their own nation 108 The state has no right over the person of a foreigner 109 nor over his property 110 Who are the heirs of a foreigner 111 Will of a foreigner 112 Escheatage 113 The right of traite foraine 114 Immovable property possessed by an alien 115 Marriages of aliens CHAP. IX. 172 ih. ih. 173 ih. ib. 174 ih. ih. 174 175 ih. 176 177 ih. ih. Of the Rights retained hy all Nations after the Introduction of Domain and Property. 116 What are the rights of which men cannot be deprived 117 Rights still remaining from the primitive state of communion 118 llight retained by each nation over the property of others . 119 Right of necessity 120 Right of procuring provision by force 121 Right of making use of things belonging to 122 Right of carrying ofi" women 123 Right of passage 124 and of procuring necessaries 125 Right of dwelling in a foreign country 120 Things, of which the use is inexhaustible 127 Right of innocent use . 128 Nature of that right in general 129 and in cases not doubtful 130 Exercise of that ritrht between nations others . 178 ib. . ih. ih. . 179 ih. . ih. 180 . ih. ih. . 181 ib. . 182 ih. . ib. CHAP. X. JSow a Nation is to iise her Right of Domain, in order to discharge her Duties towards other Nations, with respect to the Innocent Use of Things. 131 General duty of the proprietor 132 Innocent passage 183 ib. XXXll CONTENTS. Sect. Page 133 Securities may be required ..... 184 134 Passage of merchandise . . . . . ih. 135 Residence in tlie country . . . . . . ih. 136 How we are to act towards foreigners who desire a perpetual residence 185 137 Right accruing from a general permission .... ih. 138 A right granted as a favour ..... 186 139 The nation ought to be courteous . . . . , ih, CHAP. XI. Of JJsiicaption and Prescription heiioeen Nations. 140 Definition of usucaption and prescription .... 187 141 Usucaption and prescription derived from the law of nature . ih. 142 What foundation is required for ordinary prescription . . 189 143 Immemorial prescription . . . . . ih. 144 Claimant alleging reasons for his silence .... 190 145 Proprietor sufficiently showing that he does not mean to abandon his right . . . . . . . . ih. 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 Efi"ects 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 .... ih. 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 docs not render them void . . . . . ib. 159 Duty of nations in that respect .... ib. 160 Nullity of treaties which are pernicious to the state . . ih. 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 . ih. 166 How treaties may be concluded with several nations with tlic same view 197 167 The more ancient ally entitled to a preference . . . ih. 168 We owe no assistance in an unjust war . . . ih. 169 General division of treaties ; — those that relate to things already due by the law of nature . • • • . ib. 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 arc not naturally due : — equal treaties ib. CONTENTS. XXXlll 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 182 Other kinds, of which we have spoken elsewhere 183 Personal and real treaties .... 205 ib. ib. 184 Naming the contracting parties in the treaty does not render it personal ib. ib. 206 ib. ib. ib. 185 An alliance made by a republic is real 186 Treaties concluded by kings or other monarchs 187 Perpetual treaties, and those for a certain time 188 Treaties made for the king and his successors 189 Treaties made for the good of the kingdom 190 How presumption ought to be founded in doubtful cases . 207 191 The obligations and rights resulting from a real treaty pass to the successors ....... 208 192 Treaties accomplished once for all, and perfected . . ib. 193 Treaties already accomplished on the one part . . . 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. 0/ 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. XIY. Of other public Conventions, — of those that are mode by Subordinate Poicers, — particularly of the Agreement called in Latin Sponsio, — and of Conven- tions bcttccen the Sovereign and Private Persons. 206 Conventions made by sovereigns ..... 218 207 Those made by subordinate powers .... ib. 208 Treaties concluded by a public person, without orders from the sove- reign, or without sufficient powers .... 219 5 XXXIV CONTENTS. Sect. Page 209 The agreement called sponsio ..... 219 210 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. 0/ the Faith of Treaties. 218 What is sacred among nations .... 219 Treaties sacred between nations .... 220 The faith of treaties is sacred .... 221 He who violates his treaties, violates the law of nations 222 Right of nations against him who disregards the faith of treaties 223 The law of nations violated by the popes 224 This abuse authorized by princes .... 225 Use of an oath in treaties. — It does not constitute the obligation 226 It does not chano-e the nature of obligations 227 It gives no pre-eminence to one treaty above another 228 It cannot give force to a treaty that is invalid 229 Asseverations ...... 230 The faith of treaties does not depend on the difference of religion 231 Precaution to be taken in wording treaties 232 Subterfuges in treaties ..... 233 An evidently false interpretation inconsistent with the faith of treaties 234 Faith tacitly pledged ..... 229 ib. ib. ib. 230 ih. 231 232 ib. ih. 233 ib. ib. ib. 234 ib. ib. CHAP. XVI. Of Securities given for the Observance of Treaties. 235 Guaranty ....... 236 It gives the guarantee no right to interfere unasked in the execution of a treaty ..... 287 Nature of the obligation it imposes 238 The guaranty cannot impair the rights of a third party 239 Duration of the guaranty .... 240 Treaties with surety .... 241 Pawns, securities, and mortgages . 242 A nation's right over what she holds as a pledge 243 How she is obliged to restore it . 244 How she may appropriate it to herself . 245 Hostages ...... 246 What right we have over hostages 247 Their liberty alone is pledged 248 Wlien they are to be sent back 249 Whetlier they may be detained on any other account 250 They may be detained for their own actions 251 Of the support of hostages 236 ib. ib. 237 ib. ib. ib. 238 ib. ib. 239 ib. ih. ib. 240 ib. CONTENTS. XXXV 252 A subject cannot refuse to be a hostage 253 Hank of the hostages ..... 254 They ought not to make their escape 255 Whether a hostage who dies is to be replaced . 256 Substitute for a hostage ..... 257 Hostage succeeding to the crown 258 The liability of the hostage ends with the treaty 259 The violation of the treaty is an injury done to the hostages 260 The fate of the hostage when he who has given him fails in his gagements ...... 261 lliijht founded on custom ..... Page 241 ih. ih. 242 ih. ih. ih. ih. 243 ih. CHAP. XVII. Of the Inf£rpretation 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 . . . . . . ih. 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 . . ih. 266 Fourth general maxim — what is sufficiently declared is to be taken for true . . . . . . . . ih. 267 We ought to attend rather to the words of the person promising, than to those of the party stipulating .... ih. 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 . . . . . ih. 271 The terms are to be explained conformably to common usage . 248 272 Interpretation of ancient treaties . . . . . ih. 273 Quibbles on words ...... 249 274 A rule on that subject . . . . . . ih. 275 Mental reservations ...... ih. 276 Interpretation of technical terms . . . . . ih. Ill Terms whose signification admits of degrees . . . 250 278 Figurative expressions . . . . . . ih. 279 Equivocal expressions . . . . . ih. 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 ih. 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 . ih. 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 . ih. 289 What constitutes a sufficient reason for an act of the wiU . . 257 XXXVl 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 . . . . . . . . ih. 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 ih. 299 Expressions susceptible of an extensive and a limited sense . 263 300 Things favourable, and things odious .... ih. 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 .... ih. 304 Whatever renders a deed void is odious . . . ih. 305 Whatever tends to change the present state of things, is odious : the contrary is favourable . . . . . ih. 306 Things of a mixed nature ..... 266 307 Interpretation of favourable things .... ih. 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 . . . . . ih. 313 Second rule . . . . . " . . ib. 314 Third rule . . . . . . . ih. 315 Fourth rule ....... 272 316 Fifth rule . . . . . . . ih. 317 Sixth rule ....... 273 318 Seventh rule . . . . . . . ib. 319 Eighth rule ....... 274 320 Ninth rule . . . . . . . ih. 321 Tenth rule ,...-.. ib. 322 General remark on the manner of observing all the pi'eceding rules ib. CHAP. XVIII. Of the Mode of terminating Diqnites 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 ....... ih. 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. XXXVll Sect. Page 333 How we acquire a right of recurring to foi'ce in a doubtful case 334 and even without attempting other measures 335 Voluntary law of nations on that subject . 336 Equitable conditions to be offered 337 Possessor's right in doubtful eases 338 How reparation of an injury is to be sought 339 Retaliation . . . " . 340 Various modes of punishing, without having recourse to arms 341 Retortion ...... 342 Reprisals . . " . 343 What is required to render them lawful 344 Upon what effects reprisals are made 345 The state is bound to compensate those who suffer by reprisals 346 The sovereign alone can order reprisals 347 Reprisals against a nation for actions of her subjects, and in favour of the injured subjects 348 but not in favour of foreigners . . . ib. 349 Those who have given cause for I'eprisals 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. 280 ib. ib. 281 282 ib. ib. 283 ib. ib. 284 ib. 285 ib. ib. BOOK III. OF WAR. CHAP. I. 0/ War, — its different Kimh, — 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' if War, — the Raising of Troops, dr. — their ^'ommandcrs, or tlw. Subordinate Poicers in War. C Instruments of war ....... 293 7 Right of levying troops ...... 294 8 Obligation of the citizens or subjects . . . . . ih. 9 Enlisting or raising of troops ..... ih. D XXXVlll CONTENTS. Sect 10 11 12 13 1-t 15 16 17 18 19 20 21 22 23 Whether there be any exemptions from carrying arms Soldiers' pay and quarters Hospitals for invalids Mercenary soldiers Ptule to be observed in their enlistment Enlisting in foreign countries Obligation of soldiers Military laws iMilitary discipline Subordinate powers in war How their promises bind the sovereign In what cases their promises bind only themselves Their assumption of an authority which they do not possess How they bind their inferiors . Page 294 296 ih. 297 298 ih. 299 ib. ih. ih. 300 ih. ih. 301 CHAP. III. 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 . . ih. 26 What is in general a just cause of war .... 302 27 What war is unjust ...... ih. 28 The object of war . . . . . . . ih. 29 Both justificatory reasons and proper motives requisite in undertaking a war ....... 303 30 Proper motives — vicious motives . . . . . ih. 31 War undertaken upon just grounds, but from vicious motives . ih. 32 Pretexts . . . . . . . .304 33 War undertaken merely for advantage . . . ih. 34 Nations who make war without reason or apparent motives . . 305 35 How defensive war is just or unjust .... ih. 36 How it may become just against an offensive war which was originally just . . . . . . . . ih. 37 How an ofi"ensivc war is just in an evident cause . . ih. 38 in a doubtful cause ..... 306 39 War cannot be just on both sides .... ih. 40 Sometimes reputed lawful . . . . . . ih. 41 War undertaken to punish a nation .... 307 42 Whether the aggrandizement of a neighbouring power can authorize a war against him . . . . . . ih. 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 Another case more evident ..... 310 46 Other allowable means of defence against a formidable power . 311 47 Political equilibrium ...... ih. 48 Ways of maintaining it . . . . * ' . 312 49 How he that destroys the equilibrium may be restrained, or even weakened . . . . . . . ih. 50 Behaviour allowable towards a neighbour preparing for war . . 313 CONTENTS. XXXIX CHAP. IV. Of tlic Declaration of TFa?-, — 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 ih. 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. 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 Eaemi/, and of Things belonging to the Enemy. 69 Who is an enemy ....... 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 sidles. 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. Pago 85 Alliances made with a nation actually engaged in war . . . 325 86 Tacit clause in every warlike alliance .... ih. 87 To refuse succours for an unjust war is no breach of alliance . 326 88 What the casus foederis is . . . . . ih. 89 It never takes place in an unjust war .... ih. 90 How it exists in a defensive war .... ih. 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 .... ih. 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 . . ih. 95 The enemy's associates ...... 328 96 Those who make a common cause with the enemy are his associates ih. 97 and those who assist him, without being obliged to it by treaties . . . . . . . . ih. 98 or who are in an offensive alliance with him . 329 99 How a defensive alliance associates with the enemy . . ih. 100 Another case ....... ih. 101 In what case it does 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 . . . ih. 105 An ally may furnish the succour due from him, and remain neuter 333 106 Right of remaining neuter . . . . . ih. 107 Treaties of neutrality . . . . . . ih. 108 Additional reasons for making those treaties . . . 334 109 Foundation of the rules of neutrality .... ih. 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 .... ih. 116 Neutral property on board an enemy's ship . . . ih. 117 Trade with a besieged town . . . . . ih. 118 Impartial offices of neutrals ..... 340 119 Passage of troops through a neutral country . . . ih. 120 Passage to be asked ...... ih. 121 It may be refused for good reasons .... 341 122 In what case it may be forced . . . . . ib. 123 The fear of danger authorizes a refusal .... 342 124 or a demand of every reasonable security . . ih. 125 Whether always necessary to give every kind of security required . ih. 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 . ih. CONTENTS. xli Sect. . Parjc 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 ...... ih. 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 Rights of Nations in War, — and first, of v-hat we have a Right to do, and what we are allowed to do, to the Enemi/'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 Limitsof 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 bo 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 au enemy . . 362 1 59 Tenderness for the person of a king who is in arms against us . 363 CHAP. IX. Of the Right of War, ivith Respect to Things belonging to the Enrmi/. 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 d2 zlii 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 Greneral 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. 0/ Faith between Enemies, — of Stratagems, Artifices in War, Spies, and some other Practices. 174 Faith to be sacred between enemies 175 What treaties are to be observed between enemies 176 On what occasions they may be broken 177 Lies . . ._ . 178 Stratagems and artifices in war 179 Spies ...... 180 Clandestine seduction of the enemy's people 181 Whether the offers of a traitor may be accepted 182 Deceitful intelligence . 371 372 . ib. ib. . 373 . . 375 . 376 377 . ib. CHAP. XI. 0/ the Sovereign loho wages an unjust ivar. 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. XII. 0/the Voluntary Law of Nations, as it regards the Effects of Regular Warfare, independent! 1/ of the Justice of the Cause. 381 ib. 382 ib. 188 Nations not rigidly to enforce the law of nature against each other 189 Why they are bound to admit the voluntary law of nations 190 Regular war, as to its effects, is to be accounted just on both sides 191 Whatever is permitted to one party, is so to the other 192 The voluntary law gives no more than impunity to him who wages an unjust war .... • . 383 CONTENTS. Xliii cnAP. XIII. Of Acquisitions hy War, and particularly/ of Conqtcests. Sect. Page 193 War a mode of acquisition ..... 384 194 Measure of the right it gives . . . . . ih. 195 llules of the voluntary law of nations .... 385 19G Acquisition of movable property .... ih. 197 Acquisition of immovables, — or conquest .... 386 198 How to transfer them validly ..... 387 199 Conditions on which a conquered town is acquired . . ih. 200 Lands of private persons ..... 388 201 Conquest of the whole state . . . . . ih. 202 To whom the conquest belongs . . . .391 203 Whether we arc to set at liberty a people whom the enemy had un- justly conquered . . . . . . ih. CHAP. XIV. Of the Ri(jlit of Postliminium. 204 Definition of the right of postliminium .... 392 205 Foundation of that right . . . . . ih. 206 How it takes effect . . . . . .393 207 Whether it takes effect among the allies . . . ih. 208 Of no validity in neutral nations . . . . . ih. 209 What things are recoverable by that right . . . 394 210 Of those who cannot return by the right of postliminium . . ih. 211 They enjoy that right when retaken .... ih. 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 postliminium ...... 396 214 Right of postliminium for what is restored at the peace . . 397 215 and for things ceded to the enemy . . . ih. 216 The right of postliminium does not exist after a peace . . ih. 217 Why always in force for prisoners • . . , ih. 218 They are free even by escaping into a neutral country , . ih. 219 How the rights and obligations of prisoners subsist . . 398 220 Testament of a prisoner of war . . . . . ih. 221 Marriage '■•■•.. ih. 222 llegulatious established by treaty or custom, respecting postliminium ih. CHAP. XV. Of the Right of Private Persons in War. 223 Subjects cannot commit hostilities without the sovereign's order 39D 224 That order may be general or particular .... ih. 225 Source of the necessity of such an order . . . ih. 226 Why the law of nations should have adopted this rule . . ih, 227 Precise moaning of the order ..... 400 228 What may be undertaken by private persons, presuming on the sovereign's will ... ih 229 Privateers . . . . . ' . ' . ih. 230 A''oluntocrs ....... 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. 233 234 235 236 237 238 239 240 241 242 243 244 24.5 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 Of various Conventions made during the Course of the War. Truce and suspension of arms does not terminate the war . A truce is either partial or general General truce for many years By whom those agreements may be concluded The sovereign's faith engaged in them When the truce begins to be obligatory Publication of the truce Subjects contravening the truce Violation of the truce . Stipulation of a penalty against the infractor Time of the truce Eifects 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 ...... Second rule — not to take advantage of the truce in doing what hos- tilities would have prevented . . for instance, continuing the works of a siege, or repairing breaches ....... or introducing succours .... Distinction of a particular case ..... Retreat of an army during a suspension of hostilities Third rule — Nothing to be attempted in contested places, but every thing to be left as it was ..... Places quitted or neglected by the enemy Subjects inclined to revolt against their prince not to be received during the truce ...... much less to be solicited to treason Persons or effects of enemies not to be seized during the truce Right of postliminium during the truce Intercourse allowed during a truce .... Persons detained by unsurmountable obstacles after the expiration of the truce ....... Particular conditions added to truces .... At the expiration of the truce the war recommences without any new declaration ....... Capitulations; and by whom they may be concluded Clauses contained in them ..... Observance of capitulations, and its utility Promises made to the enemy by individuals 404 ih. ih. ih. 405 406 ih. ih. ih. 407 ih. ih. 408 409 ih. ih. 410 ih. 411 ih. ih. ih. ih. ih. ih. 412 ih. ih. ih. 413 414 ih. CHAP. XVII. Of Safe-conducts and Passjwrt.'^, and Questions on the Ransom of Prisoners of War. 265 Nature of safe-conducts and passports .... 416 266 From what authority they emanate .... 267 Not transferable from one person to another ih. ih. CONTENTSi xiv Serf- Page 268 Extent of the promised security . . •. . . 416 2G9 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 docs not expire at the death of him who gave it ib. 270 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. XVIII. 0/ Civil War. 287 Foundation of the sovereign's rights against the rebels 288 Who are rebels .... 289 Popular commotion, insurrection, sedition . 290 How the sovereign is to suppress them 291 He is bound to perform the promises he has made to the rebels 292 Civil war .... . 293 A civil war produces two independent parties 294 They are to observe the common laws of war 295 The efiFects of civil war distinguished according to cases 296 Conduct to be pursued by foreign nations . 421 422 . ib. ib. e rebels . 423 424 . 425 ib. . 426 427 BOOK IV. OF THE RBSTORATION OF PEACE ; AND OF EMBASSIES. CHAP. I. 0/ 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 Geoeral eS'ects of peace ...... ib. Xlvi CONTENTS. CHAP. II. Treaties of Peace. Sect. Page 9 Definiti >n of a treaty of peace ..... 432 10 By whom it may be concluded . . . , . ib. 11 Alienations made 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. 0/ 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 80 Products of the thing restored or ceded .... ib. 31 In what condition things are to be restored . . . ib. 82 The interpretation of a treaty of peace is to be against the superior party 443 33 Names of ceded countries . . . . . ib. 34 llestoration 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 fiiithfully 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 arras 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, -P«^e 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 Unsnrmountable 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 ofEmhass^i/, or the Right of sending and receiving Public Ministers. 55 It is necessary that nations be enabled to treat and communicate together 452 5G 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 . . . . . . . . ih. 59 Right of the princes and states of the empire in that respect . ib. GO Cities that have the right of banner .... 454 Gl Ministers of viceroys ...... 455 G2 ]Ministcrs of the nation or of the regents during an interregnum . ib. 03 Sovereign molesting another in the exercise of the right of embassy ib. G4 What is allowable in that respect in time of war . . ib. 05 The minister of a friendly power is to be received , . . 456 06 Resident ministers ...... ib. 07 Admission of an enemy's ministers .... 457 ^^ Whether ministers may be received from or sent to an usurper . ib. CHAP. VI. Of the several Orders of Fid>lic 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 71 Ambassadors . . . , 72 Envoys .... 73 Residents . . . . . 74 Ministers .... 75 Consuls, agents, deputies, commissioners, &c. 76 Credentials .... 77 Instructions . . . . 78 Right of sending ambassadors 79 Honours due to ambassadors ib. ib. 460 ib. ib. 461 ib. ib. ib. 462 CHAP. VII. Of the Right.^, Privileges, and Immunities of Ambassadors, and other Public Min isters. 80 Respect due to public ministers .... 81 Their persons sacred and inviolable 82 Particular protection due to them .... 83 When it commences . . 84 What is due to thom in the countries through which they pass 464 ib. 465 466 ib. xlviii CONTENTS. ' Sect. Page 85 Ambassadors goiug to an enemy's country .... 467 86 Embassies between enemies . . . . . ih. 87 Heralds, trumpeters, and drummers .... 468 88 Ministers, trumpeters, &c., to be respected even in a civil war . ih. * 89 Sometimes they may be refused admittance . . . 469 90 Every thing which has the appearance of insult to them must be avoided ih. 91 By and to whom they may be sent .... 470 92 Independence of foreign ministers . . . . ih. 93 How the foreign minister is to behave .... 472 94 Plow he may be punished for ordinary transgressions . . 475 95 for faults committed against the prince . . ih. 96 Right of ordering away an ambassador who is guilty or justly suspected ih. 97 Right of repressing him by force, if he behaves as an enemy . 476 98 Ambassador forming dangerous plots and conspiracies . . ih. 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 .... ih. 108 A sovereign in a foreign country .... 486 109 Deputies to the states ...... 487 CHAP. VIII. Of tlie Judge of Amhassadois 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 . . ih. CHAP. IX. Of the Amhassador 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 . . . . . ih. 122 of the secretary of the embassy . . . ih. 123 of the ambassador's couriers and despatches . . 498 124 The ambassador's authority over his retinue . . . ih. 125 When the rights of an ambassador expire .... 500 126 Cases when new credentials are necessary . . . ih. 127 Conclusion . . . . . . . ih. THE LAW OF NATIONS. PRELIMINARIES. IDEA AND GENERAL PRINCIPLES OF THE LAW OF NATIONS. JN ATIONS or states are bodies politic, societies of men ? i- "^^at united together for the purpose of promoting their mutual ^^ meant by safety and advantage by the joint efforts of their combined st°t^'°°°"^ strength. Such a society has her affairs and her interests ; she de- ? 2. it is a liberates and takes resolutions in common ; thus becoming a ^'""'^^ P"" moral person, "who possesses an understanding and a will pe- ^°°" culiar to herself, and is susceptible of obligations and rights. To establish on a solid foundation the obligations and § 3. Defini- rights of nations^ is the design of this work. ^^^^ °^ ^^® The Laiu of Nations is the science tvhich teaches the rights j^^° °^' subsisting betiveen nations or states, and the obligations cor- respondent to those rights.{l) (!) 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 a« 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 strongcDt nation from abusing its power, and induce it tj 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- cere desire to increase the general wel- fare of all mankind. {Post, ^ 13, 14 ; General Mackintosh, Dis. 3, 4 ; Montesq. de views of the I'Esprit des Lois, liv. 1, c. 3 ; and see law of ua- 1 Bla. Com. 3-t 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, &c., and in general concluding with C, are by the present Editor. 7 E 49 Iv IDEA AND GENERAL PRINCIPLES PRELIMI- XAIIIES. In 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 Havclock v. Rockicood, 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 eovrt 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 nationn, 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 aent sources gathered information — what is the ^josi- of informa- tive Law of Nations fjencrally and pcr- tion upon manently hinding vpon all independent the law of stales? are acknowledged to bo of three Nations. descriptions : First, the long and ordi- nary PRACTICE of nations, which affords evidence of a general custom, tacitly agreed to bo observed until expressly abrogated. Secondly, the Rkcitals of what is acknowledged to have been the law or practice of nations, and which recitals will frequently be found in modern treaties. Thirdli/, the Whit- ings of eminent authors, who have long, as it were by a concurrence of tcsti- 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 jn-aetice of different nations, (and see })er Sir William Scott, in The Fladoyen, 1 Rob. Rep. 115, jwst, Ixiii. n. (7),) and the authority of toriters, such as Gro- tius, Barbeyrac, Bijnkershock, Wic- quefort, &e., 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. ; A'^iner'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 Vattcl; 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 lutorne et Extcrne, par le Com- mandeur Silvostre Pinheiro Ferreira, Ministro 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 Ilolliday's Life of Lord Mansfield, vol. 2, p. 424, &c., and Col- lectanea Juridica, 1 vol. 129; see also Vivcash v. Jiccher, 3 Maulo & Selwj'n, 284, in which Lord Ellenborough quotes several of the above author.s, to ascertain the law of nations upon the privilege of consuls.) Upon some ^><(/-t« of the law of OP THE LAW OF NATIONS. Iv the Obligations of a people, as -well towards themselves as rnEHMi- towards other nations ; and by that means we shall discover — '- — ^^ nations, especially that relating to wuri- (imr, tiffnii-H, there are ancient codcn, which either originated in authority, or were afterwards aclcnowledged to Iiave become such; but still those codes in the present state of commercial in- tercourse are imperfect. Of those are the Uhodian 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 Laws of Oleroii, pro- mulgated about the thirteenth century. Another sj'stem of international law was framed by the deputies of the HanHCfitic Lecir/iic in 1597, and which was confirmed with additions in 1(514, and has obtained much consideration in the maritime jurisprudence of na- tions. (See remarks on that code, 2 Ward's Law of Nations, 27G to 290). But the most complete and compre- hensive system of the marine law of nations is the celebrated Ordinance of .Varinc of Louis XIV., published in 1C8I, and which, coupled with the commentary of Valiu, 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 coutingenej-, and especially modifying and softening the injurious conse(iuences 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 iSiitton v. JSnttou, 1 Russ. & My. Rep. 66."?.) { Socicti/, &c. y. New Ha- ven, S Wheat. R. 4G4. j In these cases, the treaty between the two contract- ing states eitlier alters, or expressly de- clarcH the law of nations, and binds each. But still ([uestions upon the r/cncral law of nations will frequently arise, and it will then become necessary to recur to the other evidence of what is tlie 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. NichoU 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 riijltts or law of Violation nations be violated, then it appears to ^f l^^ of be conceded, that such violation may Nations be the actual and avowed ground of a when a just war ; and it is even laid down that nround of it is the duty of every nation to chas- ^m._ tise the nation guilty of the aggression. (Vattel, poKt, Book I. chap, xxiii. § 283, p. 12G; Book IL chap. ii. I 24, p. 144; f 05, 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 Cummon Law thfui 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 TRELIMI- NAniES. [Ivi] what li^ht nations or states are to be consi- dered. the Rights which result from these obligations. For, the right being nothing more than the po^Yer of doing what is 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. Nations being composed of men naturally free and inde- pendent, and who, before the establishment of civil societies, lived together in the state of nature, — Nations, or sovereign states, are to be considered as so many free persons living tosether in the state of nature. No pcrma- nvnt or ' "-'^'a- and assistance of his fellow-creatures, whether for his imme- ^''f'"^"^ ^y ' nature between all (.■5) See this position illustrated, mercial Law. 2S, and n. (4>, jK>$t. Ix. niankind. Mackintosh, Dis. 7; 1 Chittj's Com- — C. 55 lix IDEA AND GENERAL PRINCIPLES PRKLIMI NARIES. 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 [ Ix ] 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 laiv of that society is, that each indivi- dual should do for the others every thing which their necessities require, and which he ca7i perform without 7ieglecting the duty that he owes to himself : (4) a law which all men must observe in order to live in a manner consonant to their nature, and conformable to the views of their common Creator, — a law which our own safety, our happiness, our dearest interests, ought to render sacred to every one of us. Such is the 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, Ivii. n. (2), post, Ix. 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 be actually tied is a law that ow/ht to bo as strong in down. The same rules of morality obligation as the most distinct and which hold together men in families, positive rule, though it may not al- and which form families into a corn- ways be capable of the same precise monwealth, also link together several definition, nor consequently may al- commonwealths as members of the ■ low the same remedies to enforce its ob- great society of mankind. Common- eervance. 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 beuelit ably and truly with other individuals, from each other; it is therefore their 56 OF THE LAW OF NATIONS. Ix It is easy to conceive what exalted felicity the -world would preumi- enjoy, were all men willing to observe the rule that we have ^^^'^^^- just laid down. On the contrary, if each man wholly and immediately directs all his thoughts to his own interest, if he docs 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-?!^- ^"^^ tion of nature herself, that is to say, a necessary consequence jj^^^^^g"^ of the nature of man,— all men, in whatever stations they are placed, are hound 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 toivards 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 J 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 ivith other socie- ties or states, as individual man ivas obliged, before those establishments, to live ivith otlier 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 revorcnco, to practise, and to ty*s Commercial Law, 28 ; Mackin- ccforco, those rules cf justice which tosh. Disc. 7; Peake's Rep. 116; 2 control and restrain injury, which Hen. Bla. 259 ; and see ante, ^ 7; 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 Franco in A. n. 1780, and in which he obeyed, would establish, and porma- powerfully refuted the doctrine of ua- nently maintain, the well-being of the tional and Iwreditary antipathrj between universal commonwealth of the human England and France, /)o«?, book ii. chap, race, (See Observations in 1 Chit- ii. \ 21, p. 1-14.— C. 8 57 ki IDEA AND GENERAL PRINCIPLES PRELIMI- NARIES. ^ 12. Tho object of this soci- ety of na- tions. § 13. First general ob- ligation — to benefit other nations, but not to pre- judice itself. g 1-1. Ex- planation of this ob- servation. [ Ixii ] § 15. The second ge- neral law is tho liber- ty and in- dependence of nations. ? 16. Effect of that liber- ty. Since tlie object of the natural society established between all mankind is — that thcj should lend each other mutual as- sistance, in order to attain perfection themselves, and to render their condition as perfect as possible, — and since na- tions, considered as so many free persons living together in a state of nature, are bound to cultivate human society with each other, — the object of tlio 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. The first general law that we discover in the very object of the society of nations, is that each individual nati07i is hound to contribute everi/ thing in her fower to the happiness and perfection of all the others.^' But the duties that we owe to ourselves being unquestion- 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- piness and perfection. (I say, every thing she can, not only in a phi/sical but in a moral sense, — that is, every thing that she can do laufidly, and consistentlij with justice and honour.) When, therefore, she cannot contribute to the wel- fare of another nation without doing an essential injury to herself, her obligation ceases on that particular occasion, and she is considered as lying under a disability to perform the ofiice in question. (6) Nations being free and independent of each other, in the same manner as men are naturally free and independent, the second general law of their society is, that each station should be left in the peaceable enjoyment of that liherty which she in- herits from nature. The natural society of nations cannot subsist, unless the natural rights of each be duly respected. No nation is willing to renounce her liberty ; she will rather break off all commerce Avith those states that should attempt to infringe upon it. As a consequence of that liberty and independence, it ex- clusively belongs to each nation to form her own judgment of what her conscience prescribes to her, — of what she can or cannot do, — of what it is proper or improper for her to do : and * Xenophon points out the true rea- son of this first of all duties, and esta- blishes its necessity, in the following words : — " If we see a man who is uni- formly eager to pursue his own pri- vate advantage, without regard to the rules of honour or tho duties of friend- ship, why should we in any emer- gency think of sparing him?" Note edit. A. D. 1797. See modern authori- ties in support of that position, nuti;, Iv, 58 n. (1), Ix. n. (5); Book ii. chap. ii. § 21. p. 141, j^ont.—C. (6) Pnlfendorf, b. iii. c. ,% s. 6, p. 20, writes clearly and decidedly on this important subject; — he observes "Tho law of humanity does not seem to oblige us to grant passage to any other goods, except such as are absolutely necessary for tho support of their life to whom they are thus conveyed." -C. OF THE LAW OF NATIONS. Ixii PriELIMI- NAKIKS. of course it rests solely with her to examine and determine whether she can perform any office for another nation ivithout neglecting the duty ivhich she 02ves 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- ? i"- i>is- serve, that the obligation, and the right which corresponds ^'"'^'■'°"* '^''" to or is derived from it, are distinguished into external and ^^-^ ^^^ ^^^ internal. The obligation is internal, as it binds the 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- P«'"f""^'^* t*^!!- duces some ricrht between them. The internal obligation is ^iHT" 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 imjjerfect. The perfect right is that which 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 p)erfect obligation is that which gives to [ Ixiii ] the opposite party the right of compulsion; the inqyerfect 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- ? i^- Equal- vails in their rights and obli' "'^ "*" Irom nature — ^Nations composed oi men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect 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. ]>v a necessary consequence of that equality, wliatever is ? i^- Effect lawful for one nation is equally lawful for any other ; and"*^'''"' whatever is unjustifiable in the one is equally so in the other. '^'^"'^ ' ^* 50 iXlll IDEA AND GENERAL PRINCIPLES pRELiMi- A nation then is mistress of lier own actions so long as ^"'^""'^' tliey do not affect the proper and perfect rights of any other § 20. Each nation — so long as she is only internally bound, and does not rni'tresrof ^^® Under any external and 'perfect obligation. If she makes her own ac- ^^ ill usc of 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 gincc they have no right to dictate to her. a e c ^ e gince nations are free^ independent, and equcd — and since li-hts of each possesses the right of judging, according to the dictates others. of her conscience, Avhat conduct she is to pursue in order to fulfil her duties ; the effect of the whole is, to produce, at h~f" f"""l6^^t externally and in the eyes of mankind, a perfect the voiun- 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 ouglit, 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 questin». The party Avho is in the wrong is guilty of a crime agdnst her own conscience ; but as there exists a possibility that she mny 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 ^Hhe voluntary laiv 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 liractice 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- postVire or »eeo«f?f(7-»/ law of nations, and deed among all nations, nor with so which is thrcrf old ; first, the universal paramount utility as to become a por- co OF THE LAW OF NATIONS. Ixiv The laws of natural society arc of such importance to the prelimi- safetj of all states, that, if the custom once prevailed of ? 22. Ilisht trampling them under foot, no nation could flatter herself ^ with the hope of preserving her national existence, and en- ^^„j^"nj,j'^"i^g joying domestic trancpiillitj, however attentive to pursue infractors every measure dictated by the most consummate prudence, ^f ^^e law justice, and moderation.* Now all men and all states have ^^ °'^^'°°^' a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensa- Right of de- ble obligation. All nations have therefore a right to resort blaring 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 Avelfare 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 -""i"'' of tl^-''*^ independent, but bound to observe the laws of that society "° *' which Nature has established between them ; and so far bound, that, when any of them violates those laws, the others have a right to repress her. The conduct of each nation, [ 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 vuivcrsal volnntary law, but bear you out in a further progress; enough to have acquired a prescriiitive thus, for instance, on mere general obligation among certain states, so principles, it is lawful to destroy your situiited as to bo 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 FetiniiifjH v. Lord Grcnn'lle, 1 Taunt, which is evidenced in their liractice. Rep. 241, 24S, upon the division of the does make a distinction, and allows profits arising from a whale when killed some and prohibits other modes of do- by the crews of several boats ; and struction ; and a belligerent is bound thiydly, the conventional law, or that to confine himself to those modes which is ai/recc? 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 sec 2^o^^j of war, however sanctioned by its prin- g 27, p. 66. ciples and purposes :" so it has ever In the case of the ship, Flad Oi/cn, been the ^ji-atfiVe of nations to bring 1 Rob. Rep. 115, Sir Williuni 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 bo illegal and ral principles, but it travels with those void. Ibid. — C. general principles only to a certain ex- "••• Etenim si base pertubaro omnia tent ; and if it stops there, you are ct pormiscero volumus, totam vitam, not at liberty to go farther and to say, periculosam, insidiosam, infestamque that mere general speculations would reddemus. Cicero in Verr. ii. 15. F 61 Ixv IDEA AND GENERAL PRINCIPLES PRELIMI- NARIES. I 24. Con- ventional hue of na- tions, or law of treaties. ? 25. Cus- tomary law of nations. ? 26. Gene ral rule re- specting that law. [ Ixvi ] The several engagements into which nations may enter produce a new kind of law of nations, called Conventiooial, or of Treaties. As it is evident that a treaty binds none but the contracting parties, the conventional law of nations is not a universal but a particular law. All that can be done on this subject, in a treatise on the Law of Nations, is to lay down those general rules which nations are bound to observe with respect to their treaties. A minute detail of the various agreements made between particular nations, and of the rights and obligations thence resulting, is matter of fact, and belongs to the province of history. Certain maxims and customs, consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law, form the Customary Law of Nations, or the Custom of Nations. (8) This law is founded on a tacit consent, or, if you please, on a tacit convention of the nations, that observe it towards each other. Whence it appears that it is not obligatory except on those nations who have adopted it, and that it is not universal, any more than the conven- tional law. The same remark, therefore, is equally applica- ble to this customary laio, 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. AVhen a custom or usage is generally established, either between all the civilized nations in the world, or only between those of a certain continent, as of Europe, for example, or between those who have a more frequent intercourse with each other ; if that custom is in its own nature indifferent, and much more, if it be useful and reasonable, it becomes 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 tJtey liave 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 Bencst V. Pipon, Knapp's Rep. 67, it seems, that most nations agree, that twenty years' uninterrupted usage (for ttoenty years is evidence as well of j'"^- lic and general cuetoma or practices as of private rights) is sufficient to sustain the same. — C. 62 (9) As to this position, see further, Marten's L. N. 356, and Fennings v. Lord Grenville, 1 Taunton's Rep. 248. There must ho a reasonable notification, in point of time, of the intention not to bo bound by the customary law. Ibid. and 1 Chitty's Criminal Law 29, 35, 92. — C. OF THE LAW OF NATIONS. Ixvi These three kinds of law of nations, the Voluntary, the prelimi- Conventional, and the Customary, together constitute the Positive Law of Nations.{lQ) For they all proceed from 'i}^- ^°p- the will of Nations ; the Voluntary from their presuw-'J con- ^'^^.^"^^^^ sent, the Conventional from an express consent, ;;■.., rhe Customary from tacit consent; and as there can be no otiier 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 ? 2S. Gene- respecting the distinction between the Necessary and the '"^^ masim Voluntary law, let us here observe, that, as the -^^''(^'<2ssar?/ [^^''^^^^1 law is always obligatory on the conscience, a nation ought the 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 ^^^ voiun- is question of examining what she may demand of other ^"^^ ^^' states, she must consult the Voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind. (10) See Division of Laws of Nations, ante, Ivii. n. (2). — C. 63 BOOK I. OF NATIONS CONSIDERED IN THEMSELVES. CHAP. I.- OF NATIONS OR SOVEREIGN STATES. (10) A NATION or a state is, as has been said at the beginning? i. Of the of this work, a body politic, or a society of men united to- ^*^^® ^^'^ °^ gether for the purpose of promoting their mutual safety and ''°^^''®'Si y- 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. {10) It is evident, that, by the very act of the civil or political g 2. The association, each citizen subjects himself to the authority of a^t^iority of the entire body, in every thing; that relates to the common* r.-''^ n m JO IP politic over welfare. The authority of all over each member, therefore, the mem- essentially belongs to the body politic, or state ; but the ex- bers. ercise of that authority may be placed in diiferent hands, ac- cording as the society may have ordained. L -^ J If the body of the nation keep in its oivn hands the em- i 3. Of tho pire, or the right to command, it is a Popular government, a^f^^ ^^ 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 Monarcliy. (11.) These three kinds of government may be variously com- bined and modified. We shall not here enter into the par- (10) Tho student desirous of enlarg- ferent Governments ; and see Cours de ing his knowledge upon this subject Droit Public Interne ct Externe, Paris, should read Locke on Government; Do A. d. 1S;J0. — C. Lolmo on tho Constitution; 1 Bla. Com. (11) See tho advantages and disad- 47 ; Sedgwick's Commentaries thereon ; vantages of each of those forms of go- and Chitty Junior's Prerogatives of tho vernment shortly considered. 1 Bla. Crown as regards Sovereignty and dif- Com. 49, 50. — C. 9 ' f2 65 OF NATIONS, OR BOOK I. CHAP. I. § 4. What are sove- reign states. 2 5. Of states bound by unequal alliance. § 6. Or by treaties of protection. [3] ticulars ; tliis subject belonging to the public universal law ;* 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. Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State. Its rights are naturally the same as those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a 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 laws. We ought, therefore, to account as sovereign states those which have united themselves to another more powerful, by an unequal alliance, in which, as Aristotle says, to the more powerful is given more honour, and to the weaker, more 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. Consequently a weak state, which, in order to provide for its safety, places itself under the protection of a more power- ful one, and engages, in return, to perform several offices equivalent to that protection, without however divesting itself of the right of government and sovereignty, — that state, I say, does not, on this account, cease to rank among the sove- reigns who acknowledge no other law than that of nations. (12) * Nor shall wo examine which of those different kinds of government is the best. It will be sufficient to say in general, that the monarchical form appears preferable to every other, pro- vided the power of the sovereign bo limited, and not absolute, — qui [prln- cipaUts] tum demuni regius est, si in- tra modestijB et mediocritatis fines se contineat, excessu potestatis, quam im- prudcntes in dies augero satagunt, minuitur, penitusque corrumpitur, Nos etulti, raajoris, potontiaj specie decejjti, dilabimur in contrarium, nou satis considerantes earn demum tutam esse potcntiam quae viribus modum impouit. The maxim has both truth and wisdom on its side. The author hero quotes tho saying of Thcopompus, king of Sparta, who, returning to his house amidst tho acclamations of tho peo- ple, after tho establishment of tho Ephori — "You will leave to your chil- dren (said his wife) an authority di- C6 miuishod through your fault." " True," replied the king : " I shall leave them a smaller portion of it; but it will rest upon a firmer basis." The Lace- dajmonians, during a certain period, had two chiefs to whom they very im- properly gave the title of kings. They were magistrates, who possessed a very limited power, and whom it was not unusual to cite before the tribunal of justice, — to arrest, — to condemn to death. — Sweden acts with less impro- priety in continuing to bestow on hei chief tho title of king, although she has circumscribed his power within verj' narrow bounds. IIo shares not his authority with a colleague, — he is hereditary, — and the state has, from time immcmorinl, borne tho title of a kingilom. — Edit. A. n. 1797. (12) This and other rules respect- ing smaller states sometimes form tho subject of consideration even in tho Municipal Courts. In caso of a re- SOVEREIGN STATES. There occurs no greater difficulty with respect to tributary book i. states; for though the payment of tribute to a foreign power does in some degree diminish the dignity of those states, from ? .'^ ^^ its being a confession of their Aveakness, — yet it suffers their gtates"^ 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^*^*^^" 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- tory prince being strictly sovereign. The king of Naples pays homage for his kingdom to the pope, and is nevertheless reckoned among the principal sovereigns of Eui'ope. Two sovereign states may also be subject to the same ? 9. Of two prince, without any dependence on each other, and each may ^^^^^^ ^°^- retain all its rights as a free and sovereign state. The kino; ^^^^ *° \ ^ c T, ■ ■ • • r-ATfii-o- 1 ? same prince. 01 rrussia is sovereign prince oi JNeuichatel in owitzerland, 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 g lo. Of unite themselves together by a perpetual confederacy, with- f^^'^-' f°™- out ceasing to be, each individually, a perfect state. They ^"° J^[|'^^''^'"'^^ 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,(lo) and such the members of the Helvetic body. volted colony, or part of a parent or Thompion v. Powlea, 2 Sim. Rep. 202 ; principal state, no subject of another Yriaan-i v. Clement, 2 Car. idi siiprema est lex. the property of any private individual. Upon this principle it has been esta- Sec Gocenwrs, dc. v. Meredith, 4 Term Wished, that for national defence in Rep. 796-7.— C. war, it is legal to pull down or injure 71 GENERAL PRINCIPLES OF BOOK I. CHAP. II. § 22. And to avoid every thing con- trary to its perfection. ? 23. The rights it de- rives from these obli- gations. § 2-i. Ex- amples. 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 procm^e 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 j)rivato interest excepting the approba- tion of their countrymen, almost de- stroy themselves by exertion in discus- sing the inn)rovcmcnt of existing regu- lations ; and this indeed even to excess as regards long speeches, sometimes oven counteracting their own laudable endeavours. — C. (19) See Book L chap, xxiii. § 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, &c. not yielding even 21. jkv vent., it must be admitted that great public spirit for national good very generally prevails. — C. THE DUTIES OP A NATION, ETC. 7 There is another nation illustrious by its bravery and its book i. victories. Its numerous and valiant nobility, its extensive '"'"'• "' . and fertile dominions, miglit 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 designs for [ ^ J 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 na- nation ought to Jcnoiv itself. [21) Without this knowledge it tion ought cannot make any successful endeavours after its own per-*° '^°^^,. 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 natm-e. Nations cannot be well governed without such regulations as are suitable to their respective characters ; and in order to this, their characters 0U2;ht to be known. (21) This is one of the soundest and true wisdom. Every moral and wise most iiuportaut princi|)les that can bo man should enhirgo 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, worii. Mason on to the attainment of the rudiments of Self-Knowledjie. 10 a 73 BOOK I. CHAP. III. OF THE CONSTITUTION OF A STATE. CHAP. III. g 26. Of public au- thority. ?27. What is tho con- stitution of a state. [9] ? 28. The nation ought to choose tho best consti- tution. ^ 29. Of political, fundamen- tal, and civil laws. OF THE CONSTITUTION OF A STATE, AND THE DUTIES AND RIGHTS OF THE NATION IN THIS EESPECT. WE were unable to avoid, in the first chapter, anticipating something of the subject of this. We have seen ah-eady that every political society must necessarily establish a public authority to regulate their com- 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. The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body politic, — how and by whom the people are to be governed, — and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established. The perfection of a state, and its aptitude to attain the ends of society, must then depend on its constitution : consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to choose the best constitution possible, and that most 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. The laws are regulations established by public authority, to be observed in society. All these ought to relate to the welfare of the state and of the citizens. The laws made di- rectly with a view to the j^ulUc welfare are 2^olitical laws ; and in this class, those that concern the body itself and the being of the society, the form of government, the manner in Avhich the public authority is to be exerted, — those, in a word, which together form the constitution of the state, are the funda- mental laivs. The civil laws are those that regulate the rights and con- duct of the citizens among themselves. Every nation that would not be v/anting to itself, ought to apply its utmost care in establishing these laws, and princi- pally its fundamental laws, — in establishing them, I say, with 7tt OF THE CONSTITUTION OF A STATE. » ■wisdom, in a manner suitable to the genius of tlie people, and book i. to all the circumstances in which they may be placed : they ^^^^' "^' 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 ? so. Of the public tranquillity, the firmest support of political authority, support of and a security for the liberty of the citizens. But this con- , f. ^°°^ \' • 1 Till •!> t^^tion and stitution IS a vain phantom, and the best laws are useless, it obedionco 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) 2))'iueij>i(s 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. EooK I. such importance, and the nation being strictly obliged to pro- ' "' cure, as far as possible, the best and most convenient one, it CHAP. III. ^31. The }ifig a right to every thing necessary to enable it to fulfil this nation with obligation (§ 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 menT'^" it. Government is established only for the sake of the na- tion, -with a view to its safety and happiness, g 32. It If any nation is dissatisfied with the public administration, may reform j^ j^^j apply the necessary remedies, and reform the govern- menf°^"'^' ^^^^' ^^^ obscrvo that I say "the nation;" for I am very far from meanins; 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. g 33. And In virtue of the same principles, it is certain that if the may change nation is unoasv under its constitution, it has a right to the consti- „i „^^„ r*. . change it. There can be no diflSculty 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. & Pul. 375; 5 Bar. is optional, in a moral view, to ob- & Aid. 341; acd vide IZ Vcs. 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 ^"''^^' '"' 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-*!^'^ '^'S'-^^- tion to tlic manner in which it desires to be governed, and to '^? P"^<^r, I 1 PI • • 1 • • n 1 1 P • 7 • °-^'^ whether the conduct oi the citizens : tins is called the legislative pozver. n 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 y 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. [ 1- ] 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) Thu3, during the last war, Eng- being considered unconstitutional dele- lish acts of Parliament delejcated to gations of powers of altering the /iiurfa- tho king in council tho power of making vicntal law?, 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, ordei-s so made are not absolutely to power was proposed to be given to become law until they have been sub- eight of tho judges to make rules and niitted to, and not objected against, orders respecting pleading, these not in parliament during six weeks. — C. 12 OF THE SOVEREIGN. BOOK I. CHAP. III. § 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. 2 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 very circumspect in this point, and never be inclined to make innovations without the most pressing reasons, or an absolute necessity. The fickleness of the Athenians was ever inimical to the happiness of the republic, and at length proved fatal to that liberty of which they were so jealous, without knowing how to enjoy it. We may conclude from what has been said (§ 31), 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 affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices, unless requested to do it, or induced by particular reasons. If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury. CHAP. IV. CHAP. lY. OP THE SOVEREIGN, HIS OBLIGATIONS, AND HIS RIGHTS. sovereign. §38. Of the THE reader cannot expect to find here a long deduction of the rights of sovereignty, and the functions of a prince. These are to be found in treatises on the public law. In this chapter we only propose to show, in consequence of the grand principles of the law of nations, what a sovereign is, and to give a general idea of his obligations and his rights. We have said that the sovereignty is that public authority which commands in civil society, and orders and directs what each citizen is to perform, to obtain the end of its institution. This authority originally and essentially belonged to the body of the society, to which each member submitted, and ceded his natural right of conducting himself in every thing as he pleased, according to the dictates of his own understanding, and of doing himself justice. But the body of the society does not always retain in its own hands this sovereign 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 tliat men form a political society, and submit book i^ to laws, solely for their own advantage and safety. The CHAP. sovereign autliority is then established only for the common ^J^^- ^''^ good of all the citizens ; and it would be absurd to think that ij^jjgy^^^j.^jj' it could change its nature on passing into the hands of a safety and senate or a monarch. Flattery, therefore, cannot, without advantage rendering itself equally ridiculous and odious, deny that the °^ society, 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 * Tho last words of Louis VI. to foro had done on similar occasions) that his son Louis VII. were — " Remem- " a single hour's attention devoted by a ber, my son, that royalty is but a public prince to tho 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 tho homage and prayers ho could ofifer up sole disposer of crowns and sceptres." to God during his whole life." The Abbe Volley's Hist, of France, Vol. III. same sentiment is found in the Koran, r- C5. Hist, of Timur-Bec, Book IL ch. xli. Timur-Bec declared (as he often be- 79 14 OF THE SOVEREIGN. ter BOOK I. prince will be on liis guard even against his virtues. Let us ^°^^' ^^" not say, with some writers, that private virtues are not the virtues of kings — a maxim of superficial politicians, or of [ 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, he cultivates them in his private life; but in state afftiirs 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 kino- of France does not reveno;e the in- juries of a duke of Orleans." g 40. Of his A political society is a moral person (Prelim. § 2) inasmuch representa- ^s it has an understanding and a will, of which it makes use tive charac- ^^^, ^^^ conduct of its affairs, and is capable of obligations and rights. When, therefore, a people confer the sovereignty on any one person, they invest him with their understanding and will, and make over to him their obligations and rights, so far as relates to the administration of the state, and to the exercise of the public authority. The sovereign, or conductor of the state, thus becoming the depositary of the obligations and rights relative to government, in him is found the moral person, who, without absolutely ceasing to exist in the nation, acts thenceforwards only in him and by him. Such is the origin of the representative character, attributed to the 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 ? 41. He IS j-^jg Q^yj^ person all the majesty that belon2:s to the entire bodv intrusted p ^i ,• o J a with the Ob- of tbe nation._ ligations of The sovcrcign, thus clothed with the public authority, with the nation, every thing that constitutes the moral personality of the and invested nation, of coursc bccomcs bound by the obligations of that T'Mita. nation, and invested Avith 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 to jjg jg ^]jq depositary of the empire, and of the power of com- vatiorand iK^nding whatever conduces to the public welfare ; he ought, perfection of therefore, as a tender and wise father, and as a faithful ad- tho 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 ^"•^^' ^^' its safety or its happiness. Hence all the rights which a nation derives from its obli- ^ 43. nis 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, "-e-^pect^ reside in the sovereign, who is therefore indifferently called [ 1^ ] the conductor of the society, superior, prince, &c. Wc 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 ^"°"' ^^^ 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- ? 45. The sosses just so much of it as they have thought proper to intrust extent of his him Avith.* If the nation has plainly and simply invested P°"^^'"* him with the sovereignty, without limitation or division, he is supposed to be invested with all the prerogatives, without Preroga- wliich the sovereign command or authority could not be ex- ti^'^s of ma- crtod in the manner most conducive to the public welfare. •'®^'^" These are called regal i^rcrogatives, or the lyrerogatives of majesty. But when the sovereign power is limited and regulated by ^ 40. 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 °"siit to he is to exert it. The prince is therefore strictly obliojed not ''*^'^''^* ^f*^ 1 . 11^ , mi "^ *• . support the only to respect, but also to support them. The constitution fuuda- and the fundamental laws are the plan on which the nation mental has resolved to labour for the attainment of happiness ; the ^^"■^• execution is intrusted to the prince. Let him religiously follow this plan ; let him consider the fundamental laws as inviolable and sacred rules ; and remember that the moment ho 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 * Xeque enim se princeps reipublicoa the sovereign. Quod caput est, sit et singulorum dominum arbitrabitur, principi persuasum, totius reipublicie quamvis a.^sentatoribus id in aurem majorem quam ipsius unius auctorita- insusurrantibus, sod rectorem mereede tern esse : noque pessimis hominibus a civibus designata, quam augore, nisi crodat diversum affirmantibus gratifi- ipsis voloutibus, nefas existiniabit. candi studio ; qute magna pernicies est. Ibid. c. v.— From this principle it fol- Ibid, lows that the nation is superior to 11 81 15 OF THE SOVEREIGN. BOOK I. tlic laws : and -while it is his duty to restrain each daring ''"•'^^' ^^'" violator of them, ought he himself to trample them under foot?=^ ? 47. He If the prince be invested with the legislative power, he may, may change according to his wisdom, and when the public advantage re- fundamen- C[uires it, abolisli those laws that are not fundamental, and tai. make new ones. (See what we have said on this subject in the preceding chapter, § 34.) § 4S. He But while these laws exist, the sovereign ought religiously ought to to maintain and observe them. They are the foundation of maintain ^j^^ public tranquillity, and the firmest support of the sove- Jiutl observe ■*■ X «/ ^ A 1 the cxistino- I'cign 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."t I 49. Ill But it is necessary to explain this submission of the prince what sense ^^ ^j^g laws. First, he ought, as we have just seen, to follow to the^iawT 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 malco no scruple of vio- the lino of duty, whether through their lating their promises under the stale own licentiousness or the artifices of pretext of the public good, tlio 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 he may hap- of their privileges." Annals of tlie pen to violate the laws of the country, Netherlands, Book II. note, edit. a. i>. 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 arcby, 1GC7, in 12mo, Part II. p. 191. of this is confirmed by the example of 82 OF THE SOVEKEIGN. 16 I here speak of tlic laws that rchite to the situation of indi- book i. Tiduals, and particuhirly of those that rc^ijulate the validity -21^111^ 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 [ IT ] 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 niajest}^ 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 : ? ^O- His even the interest of nations requires that we should go some- pc''s°° '^ f^- thing farther. The sovereign is the soul of the society ; if ^ioiaUe 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 Avhom they think proper to obcy.f * Since tho above was written, France made hy Bamien to assassinate Louis has witnessed a renewal of those her- XV.] Note, edit. a.d. 1797. rors. She sighs at tho 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 tho majesty of kings in tho remarkable instance of the errors into person of a prince, whom the qualities which we are ajit 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 crs. [The author alludes to the attempt tyrant, and even a public enemy, pro- 83 17 OF THE SOVEREIGN. BOOS I. CHAP. IV. ? 51. But the nation may curb a tj'rant, and with- draw itself from his obedienco. [18] • But this high attribute of sovereignty is no reason ■why the nation shoukl not curb an insupportable tyrant, pronounce sentence on him (still respecting in his person the majesty of his rank) and withdraw itself from his obedience. To this indisputable right a powerful republic owes its birth. The tyranny exercised by Philip II. in the Netherlands excited those provinces to rise : seven of them, closely confederated, bravely maintained their liberties, under the conduct of the heroes of the House of Orange ; and Spain, after several vain and ruinous efforts, acknowledged them sovereign and 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. iVs 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 lono;er 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 vidcd it be done without obliging him, either by force or through mistake or ignorance, to concur in the act that causes his own death, — which would bo the case, for instance, in presenting him a poisoned draught. For (says he), in thus leading him to an act of suicide, altliough committed through ignorance, we make him violate the natural law which forbids each individual to take away his own life ; and the crime of him who thus unknowingly poisons him- self redounds on tho real author, — tho 84 person who administered the poison. — No cogatur tantum sciens aut impru- dens sibi conscire mortem ; quod esse nefas judicamus, veneno in potu aut cibo, quod hauriat qui perimendus est, aut simili alia rctemperato. A fine reason, truly ! Was JIariana disposed to insult tho understandings of his read- ers, or only desirous of throwing a slight varnish over tho detestable doc- trine contained in that chapter? — Note, edit. A.D. 1797. 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- ^"•^''' '^' • 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 [ 1^ ] 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 wlien 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 * Dissiuuilandum censeo quatenus Henrico hujus abnepote ob ignaviam salus publica patiatur, privatiinquo pravosquo mores abdicato procerum corruptis moribiis princeps contingat; suffragiis, priimuu Alfonsiis ejus frater, alioquin si reuipublicam iu perieuluni recto au secus non disputo, sed tamen vocat, si patria3 religionis contemptor in tenora ictate rex est proclamatus : existit, neque medic-inam ullam re- deinde defiincto Alfonso, Elisabetha cipit, abdicaudum judico, aliuin sub- ejus soror, Henrico invito, reruui suni- Stitucnduiu ; quod in Hispania non mam ad so traxit, regio tautum nomino semel fuisse factum sciinus : quasi fera abstiuens duin ille vixit. Mariana, do irritata, omnium telis pcti debet, cum, Rego ct Regis Institut. Lib. I. c. iii. humanitato abdicata, tyrannum induit. To tbis authority, furnisbed by Spain, Sic Petro rege ob imuuinitatom dcjecto join that of Scotland, proved by the publice, Henricus ejus frater, quamvis letter of tho barons to the pope, dated ex imparl matre, regnum obtinuit. Sic April 6, 1320, requesting biiu to pre- H 85 20 OF THE SOVEREIGN. BOOK I. CHAP. IV. is above a century since the English took up arms against their king, and obliged him to descend from the throne. A set of able, enterprising men, spurred on by ambition, took advantage of the terrible ferment caused by fanaticism and party spirit ; and Great Britain suffered her sovereign to die unworthily on a scaffold. The nation coming to itself 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 Avill 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 vail on tlie king of England to desist from his enterprises against Scotland. After having spoken of tho evils they had suffered from him, they add — A quibus malis innumeris, ipso juvanto qui post vulnera medetur et sanat, liberati sumus per serenissimum prin- cipem regem et dominum nostrum, dominum Robcrtum, qui pro populo et hsereditate suis de manibus inimicoriim liberandis, quasi alter Maccabwus aut Josue, laborcs et ta;dia, inedias et pe- ricula, lasto 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 ct assensus nostrum focerunt principem atque regem : eui, tanquam illi per quern salus in populo facta est, pro nostra libertate tuonda, tam jure quam meritis tenemur, et volumus in omnibus adhajrere. Quem, si ab in- ceptis desistot, regi Anglorum aufc Anglis nos aut regnum nostrum volens subjieere, tanquam inimicum nostrum ct sui nostrique juris subversorem, statim expelloro nitemur, et alium regem nostrum, qui ad dofonsionem nostram sufficiet, faciemus : quia, quamdiu centum viri remaiisorint, nun- quam Anglorum doniinio aliquatcnus volumus subjugari. Non onim propter gloriam, divitias, aut honorcs pugna- mus, sed propter liberlatem solummodo, quam nomo, bonus nisi simul cum vita amittit. "In the year 1581" (says Grotiua, Ann. Book III.) "the confederated provinces of the Netherlands — after having for nine years continued to wage war against Philip tho Second, without ceasing to acknowledge him as their sovereign — at length solemnly deprived him of the authority he had possessed over their country, because ho had 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 whoso right to the crown rests on any other founda- tion than tho right which the people possess of divesting their sovereign of his power when ho makes an ill uso of it." Pursuant to this idea., the United Provinces, in their justificatory letters on that subject, addressed to tho princes of the empire and the king of Denmark — after having enumerated tho o])prcssive 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 wore all contrary to the duty of a prince." Ibid. — Note, edit. A. d. 1797. OF THE SOVERElGJf> 20 from what is the object of all political society— the safety of book i. the nation, which is the supreme law.* But, if the distinc- '^**^^' -'^ ' ■ tion of which we are treating is of no moment with respect to the right, it can be 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, wlien the public miseries are raised to such a height that the people may say with Tacitus, miser am 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 j 52. Arin- commonly very jealous of it ; it seldom happens that he pa- tration be- tiently suffers resistance, and peaceably submits to the judg-*""^^" *^® ment of his people. Can he Avant support, while he is the hi^^ui/ects distributor of favours ? We see too many base and ambitious r 91 "1 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 su1)jects, 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 Avith regard to those of Denmark. The princes and states of West Friesland, and the burgesses of Embden, ha^-e in the same manner constituted the republic of the United Provinces the judge of their differences. Tlie 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, ut sit minora pr.xsiJia linbont. Certo a repub- principibus pcrsuasuin, si rempublicam Ilea, uuilo ortum habet regia potostas, oppresseriiit, si vitiis et fooditate intolo- rebus exigeutibus, regcns in jus vocari raudi eruut. ca so conditiono vivere, ut potest, et, si sanitatem respuat, princi- nou jure taiituin, sed cum laude el jiatu spoliari ; neiiuo itA in principem gloria, perimi possiut. Ibid. — ^«ote. ediL jura potestatis transtulit, ut non sibi A. D. 1797. majorom reservarit potostateni. Ibid, cap. vi. 87 21 OF THE SOVEREIGN. which sub jects owe to a sovereign. BOOK I. of the confederated states, though each of them is truly sove- ^^^' ^^'' reign and independent. § 53. The As soon as a nation acknowledges a prince for its lawful obedioneo sovereign, all the citizens owe him a faithful obedience. He can neither govern the state, nor perform what the nation ex- 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. ^ 54. In Nevertheless this ought not to be entirely a blind obedi- what cases encc. No engagement can oblige, or even authorize, a man they may ^^ violate the law of nature. All authors who have any re- resist iiiiii 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 suljject 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 Ave 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 sutler 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'. 88 OF THE SOVEREIGN. 22 ficed to the peace and safety of the state, on account of the "'"^"^ ^^ great advantages obtained by living in society. It is pre- — — ^ - sinned, as matter of course, that every citizen has tacitly en- gaged to observe this moderation ; because, Avithout 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 Avould 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- f|uires 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 1 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 YI. of France was suddenly disordered by a fatal accident, he in his fury killed several of those who surrounded him : luuie 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. g 11, n. 2. 12 H 2 89 23 OF STATES ELECTIVE, BOOK I. CHAP. I) § 55. Of ministers. 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. OF STATES ELECTIVE, SUCCESSIVE OR HEREDITARY, AND OF THOSE CALLED PATRIMONIAL. ? 50. Of WE have seen in the preceding chapter, that it originally eiectivo belongs to a nation to confer the supreme authority, and to 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, whetlicr elective kings and princes are her elective real Sovereigns. But he who lays any stress on this circum- stance must have only a very confused idea of sovereignty. The manner in which a prince obtains his dignity has nothing to do with determining its nature. We must consider, first, whether the nation itself forms an independent society (see 90 kings are real sove- reitcns. 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- ^"^^' ^' ent state really represents his nation, he ought to be 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 s"«<=^ssi^« for a long succession of years, by establishing the rifjht of ^^^^^^.y succession, or by rendering the croAvn hereditary in a family, states. according to the order and rules that appear most agreeable The origin to that nation. The name of an Hereditary State or Kingdom "^ ^^° "^^it is given to that where the successor is appointed by the same gj^^^ law that regulates the successions of individuals. The Suc- cessive Kinfidom 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 ' ^^ "° *' 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 § co. Other of writers, may be derived from other sources, as conquest, ^^^"^^^^ or the right of a proprietor, who, being master of a country, amount 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 *'on may public welfare and the general safety. If it happened then <^^^^s® t^^® 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. Sahis popuU suprcma h\r, the safety of [ -5 ] 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 thou- safety and greater advantage.* * Nimiruin, quod publicaa snlutis bus exigentibus, immutari quid obstat? causa et communi consensu statutuin M.vni.vxA, ibid. c. iv. est, eadem multitudiuis voluntato, re- 91 25 OF STATES ELECTIVE, BOOK I. This pretended proprietary right attributed to princes is a CHAP. V. ci^JQ^ei-^.^ 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 onl}^ 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 nuDciations. j-gojoves 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 tlie 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- setting a dangerous precedent, for a corns 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 iirospeet 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 fcllow-citixeus in preference to perty of the people (thence usunlly de- their own private advantage. GitOTius. nominated r(?«-;/H^//c«) ; and that, as in Hist, of the Disturbances in the Ne- overy period of the world there have therhuids, book ii. — Edit. A. I). 1707. 92 SUCCESSIVE, OR HEREDITARY, ETC. 26 another monarchy ; and thus the law of Portugal disqualifies hook i. every foreigner who lays claim to the crown by right of blood."* _££f^iJ:_ 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, t&c. But they ought to have considered the succession less as a property of the reigning family, than as a li>w of the state. From this clear and incontestable prin- ciple, Ave easily deduce the whole doctrine of renunciations. Those ref[uircd or approved by the state arc 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, ""i^^r of sue it is certain that every descendant ought to succeed when the .„^\. ^„,„ _ ./ ^ o uugnc coin- order of succession calls him to the throne, hoAvever great moniy to be may appear his incapacity to rule by himself. This is a con- kept. (2.'5) sequence of the spirit of the law that established the succession : for the people had recourse to it only to prevent the troubles Avhich 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. "I Though the succession was not estal)lished for the particular advantage of the sovereign and his fiimily, 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. ['2o) * Spirit of Laws, liook xxvi. chnp. J Memorial in behalf of Madame do sxiii., where may be seen very good po- Longueville, concerning the principality litieal reasons for these regulations. of Neufoh.atel, in 1672. t See further on. (2.'5) See this doctrine illustrated in 1 Bla. Com. 2-17-S.— C. 93 27 OF STATES ELECTIVE, BOOK I. These reasons have the greater weight, since the law or CHAP. V. ^YiQ state may remedy the incapacity of the prince by nomi- § 64. Of nating a 7'egent, as is practised in cases of minority. This regents. regent is, during the whole time of his administration, invested with the royal authority ; hut he exercises it in the king's name. (24) § 65. Indi- The principles we have just established inspecting the suc- visibUity of ccssivc or hereditary right, manifestly show that a prince sovereign- -j^^^ ^^ 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. ^ 66. Who The same principles will also furnish us with the solution are to do- of a celebrated question. When the right of succession cido dis- becomes uncertain in a successive or hereditary state, and s^ectint'the *^'*^ ^^^ three competitors lay claim to the crown, it is asked, succcssron "Who shall be the judge of their pretensions?" Some to a sove- learned men, resting on the opinion that sovereigns are sub- reignty. j^ct 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. approbation and consent of tho rospoct- * But it is to bo observed that those ive states, partitions were not made without the 94 SUCCESSIVE, OR iArEDITAIIY, ETC. 28 CHAP. phers,* what can be expected from the human mind, when ""ok seduced by interest or fear ? What ! in a question that con- cerns none so much as the nation — that relates to a power established only Avith 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 ? Arc 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 hxAV of succession, Avho 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 aifair that relates to its most sacred duties and most precious rights. Grotius and Puifendorf diifer in reality but little from our opinion ; but would not have the decision of the people or state called a juridical sentence {judicium jurisdictionis). AVell ! be it so : avc 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 * Nosico quomodo nihil tam absurdo philosophorum. Cicero, de Diviuat. dici potest, quod non dicatur ab nliquo lib. ii. 95 28 OF STATE^ ELECTIVE, BOOK I. support, by an infinite number of examples, a truth so evi- '^"'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 [ -9 ] tjie 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."* Guicciardini, book xii., also shows that it was the states of Arragon that decided the succession to that kingdom, in favour of Ferdinand, grandfather of Ferdinand the husband of Isabella, queen of Castile, in preference to the other re- lations of Martin, king of Arragon, who asserted that the kingdom belonged to thcm.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. ? G7. 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- gtates (Portugal excepted), that no descendant of the sovereign notto^ie- ^^^ succeed to the crown, unless he be the issue of a marriage peucl 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 power of acknowledging those who are capable of succeeding ; power. ^^^^ 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 poAver of familiarizing the human mind to the greatest absurdities, is there any man of sense Avho 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 Rom.e 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 ; mrriage 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 do la Cucva, the kino-'s favourite ; and notwith- * Answer in behalf of Madame do J See tlie same memorial, which Longuevillo to a memorial in behalf of quotes P. Labbo's Royal Abridgment, Madame de Nemours. f Ibid. page 501, &c. 9G 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, ^° — — 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 ? C3. Of successor, and even transfer the crown to another during his *'"'*^^ '^^^^^^ " patrimonial, * I take this historical passage from says he, nobis rite debitam et conces- M. Du Port de Tcrtro's Conspiracies, sam. To him I refer; fur I have not the ori- P. 156, Forma dispensationis super ginal historians by me. However, I do aflRnitato consanguinitatis inter Lu- not enter into the question relating to dovicum marchioncm Brandenburg et the birth of .Tane : this would hero be Margaretham dueissam Karinthia^, nee of no use. The princess had not been non logitimatio liberorum procreando- declared a bastard according to the rum, facta} per dom, Ludovic, IV, Rom. laws ; the king acknowledged her for impor. his daughter; and besides, whether she It is only human law, says the empe- was or was not legitimate, the iucon- ror, that hinders these marriages intra veniences resulting from the pope's re- gradus affinitatis sanguinis, pra?sertim fusal still remained the same with re- intra fratres et sororcs. De cujus legis spect to her and the king of Portugal, — pra'ceptis dispensare solummodo pertinet Note, edit, 1797, ad auctoritatem imperatoris seu princl- ■f P, 15 1, Forma divortii matrimo- pis Romanorum, He then opposes and nialis inter Johnnnem filium regis Bo- condemns the opinion of those who dare hernia) et Margaretham dueissam Ka- to say that these dispensations depend rinthia\ This divorce is given by the on ecclesiastics. Both this act and the emperor o i account of the impot^n- former are dated in the year 1341, cy 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 kingdoms or ■ ^^^^' ^ • states : but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shown (§ 61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to [ 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. ^ 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 \^y virtue of the power with which he is, either expressly or miaienaje. 1^^ ^^^-^ conscnt, intrustcd — 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 Pcrgamus, Bithynia, and Cyrene do, when their kings gave them, by their last wills, to the lloman people ? Nothing remained for them, but to submit Avith 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. ^ 12. 98 SUCCESSIVE, OR HEREDITARY, ETC. 3l people rcsistinnf a similar bequest of their sovereign, and book i. whose resistance had been generally condemned as unjust and ^"^^' ""' ■ rebellious. Had Peter I., who nominated his wife to succeed him, attempted to subject his empire to the grand seignior, or to some other neighbouring power, can we imagine that the Russians would have suifered 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 b}'' the tacit consent of the people. If the power of nominating his successor is intrusted to the g to. Duty sovereign, he ought to have no other view in his choice but of ^ prince the advantage and safety of the state. He himself was es- ^ '^ ^^' 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- thc same view. It would be absurd to consider it as a prero- cesser, 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 w'C 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 conse«t of his France, vol. iii. p. 491. barons, who were bound ha defend 99 a2 PRINCIPAL OBJECTS OF BOOK I CHAP. \ ?71. 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 ? He We may go still farther, and boldly assert, that, as the must have safety of the whole nation is deeply interested in so import- at least a g^j^^ g^ 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 of its prince ? As soon as the people submit to the sovereign appointed to rule over them, they tacitly ratify the choice made by the last prince ; and the new monarch enters into all the rights of his predecessor. tacit rati- fication. [ 33] out the du ties of the sovereisn. 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- ciety points 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 Avho arc 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 ou-'ht to iigiiinst all external violence (§ 15). The nation, or its con- ductor, should first apply to the business of providing for all the wants of the people, and producing a liappy iilenty 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 larRo, 2 Malthus, 433 ; 2 Smith, W. N. happiness of a people depends on the 200 ; 2 Paley, Mor. Phil. 345 ; Sir J. •(uantity of productive labour and cm- Child on Trade, 1C7-S ; and Tucker on ployment, and the consequent return Trade, ])art ii. sections 4,7,8; 1 Chit- of produce and remuneration, discussed ty's Commercial Lait, 1, Ac. — C. 100 procure plenty. A GOOD GOVERNMENT. 03 CHAP. VI. ury contributes to the happiness of men, it likewise enables book them to labour with greater safety and success after their own perfection, Avhich 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 ^ 7:?. To is necessary to take care that there be a sufficient number of t^i^e care able tvorkmcn in every useful or necessary profession. (26) |''''^'^^^^° An attentive application on the part of government, wise re- ^■^^^^^^ m,m. gulations, and assistance properly granted, will produce this bt-r of work- effect, without using constraint, which is always fatal to in- nun. dustry. Those workmen that are useful ought to be retained in § 74. To the state ; to succeed in retaining them, the public authority P'"^^'^"*.*'^® has certainly a ri";ht to use contraint, if necessary. (27) '^™'f'^'* ' ..*' -V , . ,. •'^'01 tiiose Every citizen owes his personal services to his country ; and a^ijat are 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 bo 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, en- 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 varies who severely, and has just cause of complaint against the poAver *'"'"^'' ^^^"^ by whom they are employed. f^v^i^i- In another place, we shall treat more particularly of the general question, whether a citizen be permitted to quit the (26) Thcro wcro in England many this rule, 5 Goo. I. c. 27; 2.'? Geo. II. enactments onforcinj; this supposed c. 13; 1-t Geo. III. c. 71; 4 Bla. Com. policy, and prohibiting various work- 160; but repealed by 5 Geo. IV. c. 97. men from leaving tho kingdom. See 5 — C. Geo. I. c. 27; 23 Goo. II. c. 13; 14 (28) See also tho power of provent- Geo. III. e. 71 ; 4 Bla. Com. 160. But, ing a subject, or oven a foreigner, going according to more modern policy, these abroad. Flack v. Iloliit, 1 Jac. & Walk, enactments wcro repealed by 5 Goo. IV. Rep. 405, and post, § 222, and Book II. C. 97.— C. ^ lOS.— C. (27) See the English acts enforcing .12 101 34 OF THE CULTIVATION OF THE SOIL. BOOK I. society of which he is a member. The particular reasons '^^''^^' ^^' concerning useful workmen are sufficient here. g 76. La- The state ought to encourage labour, to animate indus- bour and ^j-j, (29) to cxcite abilities, to propose honours, rewards, privi- in ustry leges, and so to order matters that every one may live by his must be en- o ^ •/*/»/ eoura"-cd. 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. CHAP, vir. 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 tiUage. (31) derives its subsistence. The cultivation of the soil causes it to produce an infinite increase ; it forms the surest resource and the most solid fund of riches and commerce, for a nation that enjoys a happy climate. ^ 78. Rcgu- This object then deserves the utmost attention of the go- iation.s no- vernmcnt. The sovereign ought to neglect no means of ren- tWsTcspect Coring 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 tlie free liberty of disposing of his land — which will land. j^qj ji^iiow him to enclose and cultivate it in the most advan- [ 35 ] tagcous 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 tlie most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible. (32) (29) Antn, § 72, note (25). — C. git^hilivo enactments respecting the cul (.■JO) How fur the interference of the tivution of the soil or employmont of Icgi-slature is advisable, and when — see its produce, each individual being left the authorities and arguments collected, to his own discretion; but to prevent 1 Chilly'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 o.\press enactment enforcing public see further authorities, Chitty's Com- policy in that respect. See 56 Geo. III. inercial 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 -S^LthJ^ from the labours of agriculture. Those taxes — those excessive ?J^- ^'"" and ill-proportioned impositions, the burden of which falls jj^^^^^^^f ^ua- almost entirely on the cultivators — and the oppressions they bandmen. sufter 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 '^a-ndry the most servile mechanics — the idle citizens — consider him ''^^^.^^^ j^ an 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 I 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 ? si. The government, not only on account of the invaluable advantages *""^''^'^^'°° that fiow from it, but from its being an obligation imposed by |[ j^j^Jlj^.t^'j' ' 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, .iduals who suffer injurious weeds to ceedingly salutary if introduced into >eed on land to the injury of their neigh- this country. — C. 3oais, a regulation which would be ex- 103 36 OF THE CULTIVATION OF THE SOIL. BOOK I. CHAP. VII. and deserve to be extirpated as savage and pernicious beasts. There are others, who, to avoid labour, choose to live only by hunting, and their flocks. This might, doubtless, be allowed in the first ages of the world, when the earth, without cultivation, produced more than was sufficient to feed its small number of inhabitants. But at present, when the 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 nanes. 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 ofi" the corn that Avould 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. 10 J OF COMMERCE. 37 BOOK I. CHAP. VJII. CHAP. VIII. ~ [- 37 J OF COMMERCE. (33) IT is commerce that enables individuals and whole nations ^ 53 of to procure those commodities which they stand in need of, home and but cannot find at home. Commerce is divided into /tome f'^oign and foreign trade. (34) The former is that carried on in the *''*^®" state between the scvei'al inhabitants ; the latter is carried on with foreign nations. The home trade of a nation is of great use ; it furnishes all ^ 84 UtUity the citizens with the means of procuring whatever they want, of the home as either necessary, useful, or agreeable ; it causes a circu- ^'''^^'^• 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 § 85. utility moreover attended witli these two advantages: — 1. By trad- of foreign ing with foreigners, a nation procures such things as neither *^^*^®- nature nor art can furnish in the country it occupies. And secondly, if its foreign trade be properly directed, it increases the riches of the nation, and may become the source of wealth and plenty. Of this the example of the Carthaginians among the ancients, and that of the English and Dutch among the moderns, aftbrd 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, ^ S6. Obii- because it is clearly demonstrated from the law of nature, g^'tion to that mankind ought mutually to assist each other, and, as !'"''''''''' ,^'*® ... ^ ., •' , c ■ ^ ^ home trade. far a.s m their power, contribute to tlie periection and liap- 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 Avhich 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 advautjigo ofcommeroo and com- cipal sources of British wealth and nuM-oial rogulatious, 1 Chitty's Comuicr- power. See authorities, 1 Chitty's Com- lial Law, 1 to 100.— C. mercial Law, 7, S, ediont originally to afford tlu'iii a monopoly : but that, after they have ae»iuired a liberal profit, the trade DUght 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 puttinij men into their proper places is, perhaps, the first science of govern- ment; but that of finding the proper pla4:e 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 fran- qnHlit>i. Thus, with new vieica 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 bo 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- CHAP. viii. jjyi(^Qji^is_ There are others that would soon become ruinous, Avere 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 f 43 ] done in England. ?. 98. Bfi- The conductor of a nation ought to take particular care to lauce of encourage the commerce that is advantageous to his people, aueution^of ^^^^ ^^ suppress or lay restraints upon that which is to their government disadvantage. (42) Gold and silver having become the com- in this respect. (42) This is a questionable policy. 125, 201, 204; 3 Id. 1S3 ; Malthus. It has been laid down by some of the 196 ; 2 Paley, Mor. Phil. 400, 402 .; most eminent writers on political econo- 3 Ilumo, 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 j and Buchanan's Observations on prohibiting or restraining any particu- Smith's AV. of N. 2d ed. vol. 4, page lar branch of honest labour, or by en- 156, 157 ; Introduc. 3 Lord Sheffield's eouraging 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 ^^"^^ CHAP. viir. trade that brings into the state a greater quantit}^ of these metals than it carries out, is an advantageous trade ; and, on the contrary, that is a ruinous one, -wliich 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 ? 99- la- this view, wc shall only touch here on import duties. When P''.^* ^luties. 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. AXD THE EIGHT OF TOLL. THE utility of highways, bridges, canals, and, in a word, ? lOO. uti. of all safe and commodious ways of communication, cannot ^^*y ^^ ^'s^' be doubted. They facilitate the trade between one place and ^^^^'l^' another, and render the conveyance of merchandise less ex- °" ''' *^' 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 Yattel 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 bo a attempt of the editor to arrange them, proper tax. Ibid.— C. in i Chitty's Commercial Law, Index, (43) This is a very slight allusion to titles Import and Export.— Q. the very important regulation of import (44) But although, since Yattel 15 K-' 113 43 PUBLIC WAYS. BOOK I. One of the principal things that ought to employ the at- tention of the government with respect to the welfare of the CHAP. IX. § 101. Duty public in general, and of trade in particular, must then relate meftT'^thi *^ ^^^® 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 [ -14 ] 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. § 102. Its The whole nation ought, doubtless, to contribute to such rights in this ^jggfjji undertakincrs. 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, tJie 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. Fouii- The construction and preservation of all these works being th^'^vht f ^tt^i^^Gf^ VsAih. great expense, the nation may very justly toll. (4G) 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, Avho 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, &c., see facilities of internal intercourse by new Grotius, b. ii. chap. 2, g 14, p. 154; canals, railways, and other improve- Puffendorff, book iii. chap. 3, § 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 obliije 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, perienccd, and tolls have been abolished c. 74, s. 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 moderato penalty, just u whM a dei.gWfui things a turnpike road, sufficient to enable the surveyor to hire sosmooih, so levci, such a mode of shaving the like assistance elsewhere: and as The earth, a. scarce the ea«le in the broad Air can accomplish with his wide winga waving, to Mien, even a pauper is subject to no Had such been cut iul>haeton's time, the god penalty for refusing to work, excepting Had told his son to satisfy his craving .. 4. If I,. ,1 „ i,„ ,..;ii „,,i. «],,.„ \.„ With the York mail— but onward as we roll- that, II ne (Id so, ho will not tuen bo _ .. , , ,i , „„ ' ' Surgit aniari aliquid— (/le (oil." entitled to parochial relief. If he work, Cant. x. 78.— 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 _^»J^£iiiL state thinks proper to exempt the citizens from payin,g it, she is under no obligation to gratify strangers in this particular. But a law so just in its origin frequently degenerates intogioi. Abuse great abuses. There are countries where no care is taken ^ftiiis right, of the highways, and where nevertheless considerable tolls ^'^'^ arc 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 arhitrary 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 esplana- 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. Parthcriche v. Mason, 2 Chitty's free and open from its communication Rep. 65S ; Wyatt v. Thompson, 1 Esp. with the sea to its extreme navigable Hop. 252. { Chcsa v. Jfanown, 3 "Watts, point; but the absolute right to ap- Rep. 219; Cooper v. Smith, 9 Serg. & 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, cjuently, 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 ho thinks fit for the tant toll may bo illiberal, but is no permission, unless there be a public more iUrgal 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; Dull v. Herbert, 3 Term Rep. is a moral but imperfect right, ante, 2o3 ; though it may exist by custom § 91. — C. or prescription. Pierce v. Fauconbcrfjc, (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, tabiLshment people exchanged their superfluous commodities and eiFects mouey. |.^^ those they wanted. Afterwards gold and silver became 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. § 106. Duty The impression on the coin becoming the seal of its stand- ^^ '^': '^'^''°° ard and weight, a moment's reflection will convince us that with'^respect ^^® 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 sufiicient 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 aft'airs being over, that money ought to be called in at the expense of the state, and paid for in other specie, according to the natural standard : otherwise, this kind of burden, laid on in the hour of necessity, Avould 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 municip.al law of England, as to Law, 583; 2 Id. 179 to 187, and statutes coin, bulliuu, and money, will bo found and decisions there collected. — C. collected in 1 Bla. Com. 276 to 2S0 ; 4 116 OF MONEY AND EXCHANGE. 45 and inducing every one to lock up or send abroad the good book i. old specie ; ■whereby a temporary stop is put to the circulation ^"*''' ^' . of money. So that it is the duty of every nation and of every sovereign to abstain, as much as possible, from so dangerous an experiment, and rather to have recourse to extraordinary [ 46 ] taxes and contributions to support the pressing exigencies of the state.* Since the state is surety for the goodness of the money ^] 07. 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 tho following observations : " It is worthy of remark, that, when our kings debased the coin, they kept tho circum- stance a secret from the people : — wit- ness the ordinance of Philip de Valois in 1350, by which ho ordered Tournois Doubles to be coined 2cl. 5J(/r. fine, ■which was, in fact, a debasement of the coin. In that ordinance, address- ing the oflScers of the mint, he says — ' Upon tho 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 j-our means, ac- quire any knowledge of it; for if, through you, it comes to be known, you shall be punished fur 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 tho kingdom as regent during the captivity of King John, dated June 27, 13(i0, by virtue of which the mint-masters, directing the officers en- gaged in tho coinage to coin white Ikiiiem hi. l'2. — Tsciinn. — Etteri.in. — Schohe- tho duke of Austria perished, with two ler. — K.ebmax. — [See the national thousand of his forees, in which num- consequences of this valour, stated /<■«?, ber were ti.v hundred and seventy-six g 190, pp. 92-3.] 127 56 OF PIETY AND RELIGION. BOOK I. CHAP. XII. ^27. Of religion in- ternal and external. ? 128. Rights of individuals Liberty of conscience. ? 129. Pub- lic establish mcnt of re- ligion. (52) [57] trampled under foot the most sacred laws of nature. It was from a refinement of piety, that the anabaptists of the six- teenth century refused all obedience to the powers of the earth. James Clement and llavaillac,* those execrable par- ricides, thought themselves animated by the most sublime devotion. Religion consists in the doctrines concerning the Deity and the things of another life, and in the worship appointed to the honour of the Supreme Being. So far as it is seated in the heart, 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 puhliely established, it is an affair of state. Every man is obliged to endeavour to obtain just ideas of God, to know his laws, his views with respect to his crea- tures, and the end for which they were created. Man doubt- 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 fiill his mind. This short explanation is sufficient to prove that man is essentially and necessarily free to make use of his own choice in matters of religion. His belief is not to bo 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. But we should take care not to extend this liberty beyond its just bounds. In religious affairs a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing ivhat lie pleases, Avithout regard to the consequences it may produce on society. (5:2) The establish- ment of religion by law, and its public exercise, are mattei's of state, and are necessarily under the jurisdiction of the * The former assassinated Henry III. of Franco ; tho latter murdered his suc- cessor, Henry IV. (52) With respect to these in Eng- land, and punishments for tho viola- tion, see 4 Bla. Com. 41 to 66. Blas- phemy, or a libel> stating our Saviour 128 to have boon an impostor, and a mur- derer in principle, and a fanatic, is an indictable misdemeanor at common law. Rex V. Wuddinijton, 1 Barn. & Cress. 26. And as to modern regulation, see 4 Bla. Com. 443.— C. or PIETY AND RELIGION. 57 BOOK I. CHAP. xn. political authority. If all men are bound to serve God, the entire nation, in her national capacity, is doubtless ol;liged to serve and honour him (Prelim. § 5). And as this important righj^onhe 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. AVhen 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 ^ip- f^J';'^^?/^ ''" probation of the majority shall be received, and publicly esta- j'/^^^^ blished 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 affixirs, 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 Avith 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 tliere is § i3i. "When one established by laAv, the nation ought to protect and sup- ^^'^^'^ ^^ '^^ 17 129 58 OF PIETY AND RELIGION". BOOK I. CHAP. XII. established religion. g 132. Du- ties and rights of the soveroigu with regard to religion. port that religion, and preserve it as an establishment of the greatest importance, without, however, blindly rejecting the changes that may be proposed to render it more pure and useful : for we ought, in all things, to aim at perfection (§ 21). But as all innovations, in this case, are full 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 Ave 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. We have thus given a brief compendium of the duties and rights of a nation with regard to religion. Let us nov/ come to those of the sovereign. These cannot be exactly the same as those of the nation which the sovereign represents. The nature of the subject opposes it ; for in religion nobody can give up his liberty. To give a clear and distinct view of those rights and duties of the prince, and to establish them on a solid basis, it is necessary here to refer to the distinction we have made in the two preceding sections : if there is question of establishing a religion in a state that has not yet received one, the sovereign may doubtless favour that which to him appears the true or the best religion, — may have it announced to the people, and, by mild and suitable means, endeavour to establish it : — he is even bound to do this, because he is obliged to attend to every thing that concerns the happiness of the nation. But in this he has no right to use authority and constraint. Since there was no religion established in the society when he received his authority, the people gave him no power in this respect ; the support of the laws relating to religion is no part of his office, and does not belong to the 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 ho 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 OF riETY AND RELIOIOX. 59 power to hinder the introduction of one wliicli lie judges per- cook i. nicious to morality and dangerous to the state. For he ought '•^"•"'' ^"'- to preserve his people from every thing that may be injurious to them ; and so far is a ncAV 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. Tlie prince, or the conductor, to whom the nation has in- ^ 133. trusted the care of the government and the exorcise of the^^^here sovcreisin power, is oblic:;ed to watch over the preservation of ^^^^'"'^ '^ ^° the received religion, the worship established by law, and has reiirrion 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 wdiatsoever 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 op 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 ivhatever is injurious to charity in so- ciety. It appertains not to human justice to become the aven- ger of tvhat concerns the cause of Grod-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 ho declares the crime capital that should be ■"* The Duke do Sully: sec his Mc- f Doorum injuriaj diis cura>. — Tacit. inoirs digested by M. de I'E^'luse, vol. v. Ann. book i. c. 73. pp. 135, 136. 131 69 OF PIETY AND RELIGION. CHAI BOOK I. committed against the religious ceremonies established for pub- '"- lie afFiiirs, and in which 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. ? 131. Ob- The creeds or opinions of individuals, their sentiments with jects of his respcct to the Deity, — in a word, interior religion — should, care, and |-|.g piety, be the object of the prince's attention : he should he ouo-ht 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. f 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 alloAV 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 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 gih. lib. i. What a fine lesson does erit Qui non paruei-it, capitalo this pagan philosopher give to Chris- esto. — De Lcgib. lib. ii. tians ! •f- Quas (religiones) non metu, sed (53) See the modern enactments, 4 ea conjunctione quaj est homini cum Bla. Com. 440, 443; Id. 62, 53, in the Deo, conscrvandas puto. Cicero de Le- notes. — C. 132 (53) OF PIETY AND RELIGION. 60 If, in spite of tlio prince's care to preserve tlie established book i. religion, the entire nation, or the greater part of it, should ^"'^''' ^^'' be disgusted with it, and desire to have it changed, the sove-? ^_^^'.^^'^** reign cannot do violence to his people, nor constrain them in o,',t,i,[7o do an affair of this nature. The public religion was established whl-n the f5r the safety and advantage of the nation : and, besides its nation is re- proving inefficacious when it ceases to influence the heart, the ^o^^''^^ to sovereign has here no other authority than that which results j.gii,.;''^jj_ from the trust reposed in him by the people, and they have only committed to him that of protecting whatever religion [ ^1 J they think proper to profess. But at the same time it is very just that the prince should § 13"- Dif- have the liberty of continuing in the profession of his own f'^'"*^°°® *" T- -1 ,1- 1- -n'iiii<_i J. , religion does religion, Avithout losing his crown, rrovided that he protect ^^^ deprive 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 his 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 ? i^'S- Du- (§128). However, we have also shown that the sovereign J'.^^^i^j^^"*!^ ^^^^ has a right, and is even under an obligation, to protect and govcreicn support the religion of the state, and not suffer any person reconcired to attempt to corrupt or destroy it, — that he may even, ac-^itb tiio^e cording to circumstances, permit only one kind of public ?^ *"® ^"'^' worship throughout the whole country. Let us reconcile those different duties and rights, between Avhich 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 ligiou 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 KELIGIOX. BOOK I. CHAP. XII. 162] § 1,'59. The soveroigu ought to have the in- sjioction of the affairs of religion, and autho- rity over those wlio teach it. may bo pernicious to society. These are immutable precepts of the law of nature : the 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- casions when it only produces disturbances, and gives offence. If any one believes it absolutely necessary, let him quit the country w^here 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 Avith himself. The prodigious influence of religion on the peace and wel- fare of society incontrovertibly proves that the conductor of the state ought to have the inspection of what relates to it, and an authority over the ministers who teach it. The end of society and of civil government necessarily requires that he who exercises the supreme power should be invested with all the rights without which he could not exercise it in a manner the most advantageous to the state. These are the prerogatives of majesty (§ 45), of which no sovereign can 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 povrer, 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 folloAv 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 accordino; to the liojlit 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 proftme 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 'l3l OF PIETY AND RELIGIOX. 62 to watch over the safety and happiness of a whole nation, de- ^°°^ '• 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 ; but the sovereign attended to its preservation, and could check the high priest when he deviated from his duty. Where is it assfrted in the New Testament, that a Christian prince has nothing to do with religious aifairs ? 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 pre'ached 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 ouglit, likewise, to watch attentively, in order ? ^^^- ^^ to prevent the established religion from being employed to °^^ * [°,, . .' . 1 , ?. „ . ^ T ^. i\ prevent the smister purposes, either by making use oi its discipline to abuse of the gratify hatred, avarice, or other passions, or presenting its received re- doctrines in a light that may prove prejudicial to the state, ligion. Of wild reveries, seraphic devotions, and sublime speculations, what Avould be the consequences to society, if it entirely con- sisted of individuals Avhose 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 Avith the requisitions of nature and of the state. Unluckily for the missionaries, it evidently appears, even from Father Chaclevoix' 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 valoui- — that divisions arose between them and the rest of the nation, &e. 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. vii. 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- § 141. ^ The fgQ(;ijai . — they are both derived from the same principle. It authority '^^ 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. ^j^g happiness, and safety of the state. This is establishing two independent powers in the same society — an unfailing source of division, disturbance, and ruin. There is but one supreme power in the state ; the functions of the subordinate powers vary according to their dififerent 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. v ^ g 142. Na- }^ prince cannot, indeed, justly oblige an ecclesiastic to *"th°^t*^^^ preach a doctrine, or to perform a religious rite, which the latter does not think agreeable to the will of God. But if the minister cannot, in this respect, conform to the will of his sovereign, he ought to resign his station, and consider himself as a man who is not called to fill it — two things being 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 ? 1 143. Rule On the other hand, if the clergy are rendered contcmpti- to be ob- ijig^ \^ y^\^ ]3g qu^ Qf their power to produce the fruits for serve wi -^i^jg}^ their ministry was appointed. The rule that should respect to , ^ ■^^ -, • -, "^ ^, , . , . „ ecclesiastics. 06 lollowea With respect to them may be comprised m a icw 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 Avill be unable to discharge tliem 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 aft'air 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 CHAP. XII. ble, he should take care that this respect he not carried to ^o°^ '• such a superstitious veneration as shall arm the hand of an ambitious priest with a powerful engine Avith wdiich he may force weak minds into Avhatever 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 i 1^4. Re- religion, and this authority over the clergy, how shall he pre- c^-pituiation serve the religion pure from the admixture of any thing con- "^^^ IJ^^ trary to the Avelfare 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 w^elfarc ? and, especially, how can he prevent '"'s^t^ '° the disorders it may occasion, either by its doctrines, or the ™r • i»i'T''i*« ' (\ religion. manner m which its discipline is exerted ? These cares and r 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 ^^^ exam- by the parliaments of France. The wise and learned magis- p^^^' 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 h2 137 65 OP PIETY AND RELIGION. BOOK I. religion suljject to it, without offering violence to their con- OHAP. XII. gQi(,ngQg_ They have prepared a formulary of the doctrines that are to be preached, and published laws of ecclesiastical discipline, such as they Avould 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 sufter no exertion of church discipline but under their own authority. It is not probable that religion will ever occasion disturbances in these republics. § 145. Per- If Constantine and his successors had caused themselves nicious con- to bc formally acknowledged heads of the church, — and if sequences Chnstian kings and princes had, in this instance, known how trarv op'i- " ^^ maintain the rights of sovereignty, — would the world ever nioii. have witnessed those horrid disorders produced by the pride and ambition of some popes and ecclesiastics, emboldened by [ GG ] 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 indiflerent to the welfare of society — citizens and even brothers armed against each other, — subjects excited to revolt, and kings hurled from their thrones ? Tantiim religio potuit suadere malorum ! The history of the emperors Henry IV., Frederick I., Frederick II., and Louis of Bavaria, is well known. Was it not the independence of the ecclesiastics, — was it not that system in which the affairs of religion are submitted to a foreign power, — that plunged France into the horrors of the league, and had nearly deprived her of the best and greatest of her kings ? Had it not been for that strange and 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 Avant of a dispensation, whose validity was disputed, and which a foreign prelate claimed the solo ri;Tht of granting ? Would that same foreigner have arro- gated to himself the power of pronouncing on the legitimacy of the issue of a king ? AVould kings have been assassinated in consequence of a detestable doctrine ?t 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 s:- In England under Ilcnrj' VIII. % Though Henry IV. returned to the •j" Henry III. and llcnry IV. assas- Pvomish 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 RELIGION. 66 peace to their people, because no decision could be formed book i. ■within their OAvn dominions on articles or conditions in "U'hich S"'"'- ^"- religion was interested ?* All Ave have advanced on this subject, so evidently flows ^ 140. The from the notions of independence and sovereignty, that it will =i^"ses I'^r- never be disputed by any honest man who endeavours to rea- ^i<='^'T-"zcd. son justly. If a state cannot finally determine every thing ^.j. ^f ^jjo 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, witliin 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 ct temporalihus 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 sanetam, in which he at- tributes to the church two swords, or a double power, spii'itual 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 Miman creature is subject to the Roman pontiff.^ "* AVe shall consider the enormous power of the popes as the first abuse that sprung from this system, Avhich 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 Turretin. Hint. Ecclesiast. Compen- the council assembled at Rome on the dium, p. 182. Where may also be occasion: "Agite nunc, qua)so, patres soon the resolute answer of the king ct principes sauctissimi, ut omnis mun- of France. dus intolligat et cognoscat, quia si po- J Kxtravag. Comniun. lib. i. tit. De testis in coelo ligare et solvere, potestis Mojoritute d' Obedietitia. in terra inijieria, regna, principatus, § Gregory VII. endeavoured to ren- ducatus, marchias, comitatus, et omni- der almost all the states of Europe urn hominum possessiones, pro meritis tributary to him. Ho maintained that toUero unicuiquo et conccdere." Na- Ilungary, Dalmatia, Russia, Spain, tal, Alex. Dissert. JJist. Eccl. s. si. and and Corsica, wore 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 GiiKi!. Epiif. Concil. vol. vi. Edit, priesthood. " Imperium non prseest llarduin. — He summoned the emperor sacerdotio, sed subest, et ei obedire te- llenry IV. to appear before him, and netur." RrBnic. ch. ri. De Major, et make his defence against the accusa- Obcd. "Et est multum allegabile," is tions of some of his subjects : and, on the complaisant remark of the write- tho emperor's non-compliance, ho de- of the article. 139 67 OF PIETY AND RELIGION. BOOK I. CHAP. XI of nations and the sovereignty of princes. It is capable of overturning a state ; and wherever it is acknowledged, the sovereign finds it impossible to exercise his authority in such a manner as is most for the advantage of the nation. We have already, in the last section, given several remarkable instances of this ; and history presents others without number. The senate of Sweden having condemned Trollius, archbishop of Upsal, for the crime of rebellion, to be degraded from his see, and to end his days in a monastery, pope Leo X. had the audacity to excommunicate the administrator Steno and the whole senate, and sentenced them to rebuild, at their own 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 Y. thundered out an inter- dict against Venice, on account of some very wise laws made with respect to the government of the city, but wdiich dis- pleased that pontiff, Avho thus threw the republic into an em- barrassment, from Avhich all the wisdom and firmness of the [ 68 ] senate found it difficult to extricate it. Pius Y., in his bull. In Coena 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 f ivoured Charles YIIL, declaring them excommunicated, if within the space of fifteen days they did n(jt 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 inicjuitous 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 riglits of sove- * Uhtory of the Revolutions in Sweden. 140 OF PIETY AND lliaKUOX. 68 reigns.* We shall mention several other .siniiLir attempts, u'^ok i. Avhen we come to treat of the faith of trcatie.>. n ^w. xn. This power in the popes has given birth to another abuse, ? ii7. that deserves tlie utmost attention fi'om a wise government. -• i^'rort- AVe see several countries in which ecclesiastical di";nities, and'^" empoy- ,. ., „ .'' ' merits con- all the higher benefices, are distributed by a foreign power — ferred by a by the pope — who bestows them on his creatures, and very foreign often on men who are not subjects of the state. This practice po^*^""- 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 suflFer 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 Avanting 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 Avhich essentially belonged to the nation or its head. Even in those states whose sovereigns have preserved so g 148. important a prerogative of the crown, the abuse in a great 3- Powerful measure subsists. The sovereign nominates, indeed, to bishop- ^"^J^'''* "^'" rics and great benefices ; but his authority is not sufficient to ^ forein-n 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 ? AVould a * Vogcl'a Historical and Political had to encounter, when ho wished to Treatise on the Alliances between France confer the archbishopric of Sens on and the Thirteen Cantons, pp. 33 and Kenauld do Biiune, archbishop of Bour- 36. ojes, who had saved Franco, by receiving t Wo may sec, in the letters of Cardi- that great prince into the Roman Catho- nal d'Ossat, what difRculties, what op- lie church, position, what long delays, Henry IV. 141 69 OF PIETY AND RELIGION. BOOK I. prudent sovereign receive men who preached such doctrines ? CHAP. xir. rpj^gj^.^ i^eg(je(j ^-^Q more to cause all the missionaries to be driven from China. ? 149. It ^vas for the purpose of more firmly securing the attach- ■ ° ^^ '■ ment of churchmen that the celibacy of the clergy was in- priests. vcntcd. A pricst, 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- Convems. 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 Avho lived in celibacy, and to favour marriage rf but superstition soon attacked such just and wise regulations ; and the Christian emperors, persuaded by churchmen, thought themselves obliged to abrogate them.| Several of the fa- thers of the church have censured those laws against celi- bacy — doubtless, says a great man,§ tvith a laudable zeal for the things of another life ; but ivith very little hnoivledge 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 rofloction 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-Popprean law. ford to learned men a peaceful retreat, J In the Theodosian Code. and that leisure and tranquillity re- ^ The president do Montesquieu, in quired in deep scientific research, are bis Spirit of Laws. 142 nence. OF PIETY AND llELIGIOX. 70 science and the things of another life : — but it is certainly a book i. conduct well becoming genuine piety, to conform ourselves to- "'^''' ^"' nature, to fulfil the views of the Creator, and to labour for the welfare of society. If a person is capable of rearing a family, let him marry, let him be attentive to give his 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? i^o. are also another consequence of this system, which places ^- ■'^"°'"' every thing relating to religion beyond the reach of the ™°"j^Q^g^^'j. 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- P'"e-emi- trates : and, contrary to the express injunctions oi their master, who said to his apostles, seek not the first places at feasts, they have almost everywhere arrogated to themselves the first rank. Their head, in the Roman church, obliges sovereigns to kiss his feet ; emperors have held the bridle of his horse ; and if bishops or even simple priests do not at present raise themselves above their prince, it is because the times will not permit it : they have not always been so mo- dest; and one of their writers has had the assurance to assert, tliat a jyriest is as much above a king 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 betiveen 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 \x part of his authority. Ecclesiastics have not stopped in so fair a path. Not con-g 151. 6. in- tentcd with rendering themselves independent with respect to fiependence. their functions, — by the aid of the court of Home, they have i^^^uJiities. 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 pnvstat regi, quan- f The congregation of Immuuities turn homo bcstia;. Stnnhlaits Orichovhis. has deciiled that the cognisance of — Vide Ti-ibhechov. Exerc. \, ad liaron. causes against ecclesiastics, even for Anna!. Scct2,ct Thomas. Nat. ad. Lancell. the crime of high treason, esclusivclj- U3 71 OF PIETY AND TvELIGION. 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 i^'ince ; and, in 165G, the general assembly of the French clergy had the assurance to use the following expressions — " The decree of council having been read, ivas disajiproved by the assembly, because it leaves the king judge over the bishops, and seems to subject their immunities to his judges.'' '\ 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,| History affords us a thousand belongs to the spiritual court : — " Cog- nitio causa? contra ecclesiasticos, etiam pro delicto laesffi majestatis, feri debet a judice ecclesiastico." E-icci Si/nops. Decrct. et Jiesol. S. Conf/rei/. 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 {2^80 facto incurred the sentence of ex- communication. Cop. II. De Fora. Compel 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 Franco, where tho clergy were at length subjected to the temporal juris- diction for all transgressions that are in- jurious to society. See Papox An-etx Notablcn, book i. tit. v. act 31. "*• Indecorum est laicos homines viros ecclesiasticos judicare. Can. in noua aclione 22, xvi. q. 7. f Seo the Statement of Facts on the System of Inclc])cn(lcnce of Jiinhoj)n. J In the year 1725, a parish priest, of tho canton of Lucerne, having re- fused to appear before tho supremo council, was, for his contumacy, ba- nished from tho canton. Hereupon hi.s diocesan, tho bishop of Constance, had the assurance to write to the coun- cil that they had infringed tho ecclesi- astical immunities — that " it is unlaw- 144 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 wo 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 bis conduct — and, in consequence of his obstinate disobedience, after repeat- ed citations, to banish him from our dominions. AVe 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 ho be — and run the risk of being condemned to tolerate in tho state a person of such character, with what dignity soever he might be invested," ijj. By means of the same spiritual arms, the clergy drew 10. The every thing to themselves, usurped the authority of the tri- ticrgy draw- i^^j-j^lg^ and disturbed the course of justice. They claimed thiii^^to^ a right to take cognisance of all causes on account of sin, of themselves, tvliich (says Innoccnt Ill-t) cveri/ man of sense must hnoiv and disturb- tJiat the cogiiisaiice belongs to our ministry. In the year ins the order "1^329, the prelates of France had the assurance to tell King Philip de Valois, that, to prevent causes of any kind from being brought before the ecclesiastical courts, was depriving the church of all its rights, omnia ecclesiarum jura toUere.X 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 Avould 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 7ione 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- aclcnowledge 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 Franco assembled the other things, " that he would issue a barons and prelates of his kingdom, to bull declaring that the two llaymonds, deliberate on the pope's offer, ami they father and son, together with all their advised him to accept of it. " Strangf 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 Hint, of France, modern historian ; " they did not per- vol. iv. p. ."3. 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. cxcom- strengthened and established his pro- municated Peter, king of Arragon, tensions to the right of deposing them- dedared that ho had forfeited his king- selves." Velly's History of Francf, dom, all his lands, and even the regal vol. vi. p. 190. dignity, and pronounced his subjects "(■ In cap. Norit. dc Jiiclicia. absolved from their oath of allegiance. f See Leibnitii Codex, Juris Gent. lie 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 - "'^''' ^"' 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. t This burlesque invention leads us to remark another abuse, ? 156. manifestly contrary to the rules of a wise policy, and to the V' ^^^^'^^ , , -^ . '' , , u- T A ■ " drawn to duty a nation owes to lierselt ; i mean the immense sums j^^^^g Avhich bulls, dispensations, dtc, annually drew to Rome, from all the countries in communion with her. Hoav 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 autliority intrusted to ecclesi- g 157. astics, who were often incapable of understanding the true 12. Laws maxims of government, or too careless to take the trouble of ""'^ cuEtoms studying them, and whose minds were wholly occupied by a ^j^^ ^verfar'e visionary fanaticism, by empty speculations, and notions of of states. a chimerical and overstrained purity, — that authoi'ity, 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 Avere excommunicated for three years:"! 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, AUianco of Zurich with the upon ; they would Lave maile no great cantons of Uri, Schwoitz, and Under- profit of any other, wald, dated May 1, 1351, g 7. \ Dc Jure Belli ct Pacin, lib. ii. cap. ■)" See A Iteijulation of Parliament in x.xiv. Ho quotes Ilasil ad Amphiloch. nn arret of March 19, 1409. Spirit of x. 13. Zouarcaa in 2\'ictph. J'lioc. voL Lawt. These (says Montesquieu) were iii. the very best nights they could pitch 11 2 U9 77 OP JUSTICE AND POLITY, BOOK I. CHAP. XIII. § 158. Ana tion ought to make justice reign. g 159. To establish good laws. CHAP. XIII. OF JUSTICE AND POLITY. NEXT to the care of religion, one of the principal duties of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burdensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§ 15), that men have bound themselves by the engagements of society, and consented to divest themselves, in its favour, of a part of their natural liberty, only Avith 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 ; Avithout 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 sufiicient 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 laAVS their full elBcacy. Tlius 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- * Soe a dissertation on this subject, in the Loinir Philoaophique, p. 71. 150 OF JUSTICE AND POLITY. 77 pcnse instice. The Icfrislator should assist the understanding book i. of the judges, force their prejudices and inchnations, and sub due their will, by .simple, fixed, and certain rules. These, again, are the civil laws. L ' " J The best hnvs are useless, if they be not observed. The § 160. To nation ought then to take pains to support them, and to cause J^^^^*^" them to be respected and punctually executed : with this vicAV she cannot adopt measures too just, too extensive, or too ef- fectual ; for hence, in a great degree, depend her happiness, glory, and tranquillity. "\Ve have already observed (§ 41) that the sovereign, who ? I6i. represents a nation and is invested with its authority, is also Functions charged with its duties. An attention to make justice flourish ^^ Jj^^^p^j^^^g in the state must then be one of the principal functions of the ;„ this re- prince ; and nothing can be more worthy of the sovereign spect. majesty. The emperor Justinian thus begins his book of the Institutes : Imperatoriam majestatem non solum armis deeo- ratam, sed etiam Icgibus oportet esse armatam, ut utrumque tcmjyus, ct hellorum et pads, reete possit guhernari. 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 Avatch over those who are invested with authority, and confine each individual Avithin the bounds of duty. The executive power naturally belongs to the sovereign, § 162. iiow — to every conductor of a people: he is supposed to be iu- he is to vested with it, in its fullest extent, when the fundamentar.""^^"^® • • ^^\T^ 11 1 !• 1 1 • justice. laws do not restrict it. >Vhen the laws are establishea, it is the prince's province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the jutlge of his people. AVc 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?iP3. He establishing judges, distinguished by their integrity and "^"s''* ^*' knowledge, to take cognisance of all the disputes that niay j'/^,',j'f'," ^^ ' 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 OP JUSTICE AND POLITY. BOOK I. even for the acquisition of the knowledge necessary to decide CHAP, xm. ^}^gjjj_ j^g i\^Q 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- r 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 ccssary for the decision of all fiscal causes, — that is to say, ^?^^\^, all the disputes that may arise between the subjects on the termine ^ ^^^ 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^,g judgment in his own cause : — he cannot be too much on his guard against the illusions of interest and self-love ; and even though he were capable of resisting their influence, still he ought not to expose his character to the rash 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 Avhich the sovereign is a party, with as much freedom as those between private persons. § 165. The end of all trials at law is justly to determine the dis- Thcre ought putcs that arise between the citizens. If, therefore, suits are to be esta- prosecuted before an inferior iud";e, who examines all the cir- blished su- ^ .'' ~ , . . i.rome cumstauccs 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 wherein ^f ^j^^ former judge may be examined, and reversed, if it ap- shouiii i)e P*^'*'^" ^^ '^^* ill-f(^undcd. But it is necessary that this supreme finally di- tribunal should have tlie authority of pronouncing a definitive teruiined. scntcnce 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 tlie 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. 79 and intrigue in the courts of kings. If this practice be autho- book i. rized by the hiws of the state, the prince ought always to fear '^"*''' ^'"' that these coinpLiints 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 g icc. The cannot meddle with its decrees; and, in general, he is abso- P"°'=° lutely oblijTed to preserve and maintain the forms of iustice. ^^^ ^ .. '' » i . .„•;. preserve tha x!ivery attempt to violate them is an assumption oi arbitrary forms of 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, Avill 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 ? 167. The prince relics on the judgment of the courts, and, with good prin^^e reason, looks upon their decisions as sound law and justice. ''""^'^^ TT- ,-i-i 1P1 •! • • support the liis part in tins branch ot 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 Avould not be rendered to the citizens. There is another kind of justice named attributive or distri-^ IGS. Of butivi\ which in general consists in treating everyone accord- ^'■'"'l''*'"^'^'® ing to his deserts. This virtue ought to regulate tlie distribu-^jf^'^'j".'. . • c \ T 1 1 '^ 1° ,. The distri- tion ot 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- ™*'"'^ ''"^^ ours and rewards, and to intrust with employments sut^h per- ""®*^'^*^^" sons only as are capable of properly discharging them. In tiie 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 FOLITY. BOOK r. CHAP. XIII. [81 ] ? 1G9. Pun ishment of transgres- sors. Foundation of tlie right of punish- 170. Cri- -inal laws. perfect right to any post or dignity, — yet a man who by in- tense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation. There is hardly any fault that in the course of time can become more prejudicial to a state : it introduces into it a general relaxation ; and its public aifairs, being managed by incompetent hands, cannot fail to be attended with ill-success. A powerful state may support itself for some time by its own weight ; but at length it falls into decay ; and this is perhaps one of the principal causes of 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 liis 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. The punishment of trangressors commonly belongs to dis- tributive justice, of which it is really a breach ; since good order requires that malefactors should be made to sufier the punishments they have deserved. But, if we would clearly establish this on its true foundations, we must recur to first principles. The right of punishing, which in a state of nature belongs to each individual, is founded on the right of personal safety. Every man has a right to preserve himself from 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 tlieir 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. It would be dangerous to leave the punishment of transgres- sors entirely to the discretion of those who are invested with 154 OF JUSTICE AND POLITY. 81 BOOK I. CIIAl'. XII authority. The passions might interfere in a business ^vhich ought to be rcguhited only by justice and -wisdom. The pun- ishment pre-ordained for an evil action, lays a more efi'ectual 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, Avlien 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 Avith 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 ? 171. De- with the subject in hand, and relates to the degree of punish- P*^® °^ ^'^^' ment. From the foundation even of the right of punishing, '°r°*80 "i 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, Avhich 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- fpiillity 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 eftoct 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 Komans 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. xiiT. ^^ seeing Avith how 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 jDunishments, 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 t e aws. 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 certain that they cannot be condemned, except in pursuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accused party to commissioners chosen at the 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 liis 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. § 173. Right The very nature of government requires that the executor of pardon- ^^ ^.j^^ |^^^.g gj^Qyij ^^ve 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. Ilcncc the right of granting pardons is one of the attributes of sovereignty. But, in liis whole conduct, in his severity as well as his mercy, the sovereign ought to have 15G OF JUSTICE AND POLITY. - 83 CHAP. XIII. no other object in view than the greater advantage of soci- book ety. A wise prince knows how to reconcile justice with clemency — the care of the public safety with that pity which is due to the unfortunate. The internal police consists in the attention of the prince § 174. in- and magistrates to preserve every thing in order. Wise re- 1^'""'*! re- gulations ought to prescribe whatever will best contribute to '*'®' the public safety, utility, and convenience ; and those who are invested with authority cannot be too attentive to enforce them. By a wise police, the sovereign accustoms the people to order and obedience, and preserves peace, tranquillity, and concord among the citizens. The magistrates of Holland are said to possess extraordinary talents in this respect : — a better police prevails in their cities, and even their establishments in the Indies, than in any other places in the known world. [ 84 ] Laws and the authority of the magistrates having been sub- ? i^^- Duel, stituted in the room of private war, the conductors of a nation °^' *'°°^*^ 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 Ilomans, who raised to such a height the glory of their arms-: Ave 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 why was not that prince made sensible that the most § ire. severe punishments were incapable of curing the rage for du- Means of elling ? They did not reach the source of the evil ; and since ^""'°^.t .^ a ridiculous prejudice had persuaded all the nobility and gen- disorder. '^ 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 ? C)n 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- fonoe of iluelliug in England, see C East '• Duelling." Rep. 260; 2 East Rep. oSl ; 2 Barn. & 157 84 OF JUSTICE AND POLITY. BOOK I. worldly honour, be it as false and chimerical as you please, is CHAP. XIII. ^Q j^-j^ ^ substantial and necessary possession, since without it he can neither live with his equals, nor exercise a profession that is often his only resource. When, therefore, any insolent fellow would unjustly ravish from him that chimera so 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- [■ 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 difficult}'-, 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 Avho 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 ; ho 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 CHAP. XIII. which would not have taken place, if the latter could have ^c^^ i- • •111 !• 11 nrxA-D Ytn once imagined that there was nothing to prevent the other from chastising him for his presumption — the offended per- son being acquitted by the same law that condemns the ag- gressor. To this first hiAv, 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 OAvn 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: ana"ts- perty with them, are called emigrants. Their right to emigrate may arise from several sources. ? 225. 1. In the cases we have just mentioned (§ 223), it is a natural *^«urces of right, which is certainly reserved to each individual in the '^'*^"" "°^'' very compact itself by which civil society was formed. 2. The liberty of emigration may, in certain cases, be se- cured to the citizens by a fundamental law of the state. The citizens of Ncufchatel and Yalangin in Switzerland may quit the country and carry oft" 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, Avho, 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 cases 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, * Seo above, the chapter on lU-ligion. 106 OF OUR NATIVE COUNTRY, ETC. BOOK r. CHAP. XIX. [107] § 226. If the sove- reign iu- friuges their right, he in- jures them. § 227. Sup- plicants. § 228. Ex- ile and ba- uishuionL a citizen of Fribourg wlio, for a similar reason, is desirous of removing to Bern, has a right to quit his native country, and carry ofi' with him all his property. It appears from several passages in history, particularly the history of Switzerland and the neighbouring countries, that the law of nations, established there by custom some ages back, did not permit a state to receive the subjects of another state into the number of its citizens. This vicious custom had no other foundation than the slavery to which the people were then reduced. A prince, a lord, ranked his 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. If the sovereign attempts to molest those who have a right to emigrate, he does them an injury ; and the injured indi- viduals may lawfully implore the protection of the power who is willing to receive them. Thus we have seen Frederic Wil- liam, king of Prussia, grant his protection to the emigrant Protestants of Saltzburgh. The name of supplicants is given to all fugitives who im- 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. Finally, exile is another manner of leaving our country. An exile is a man driven from the place of his settlement, or constrained to quit it, but without a mark of infamy. 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, Avhich deprives him of the right of dAvelling 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, cither real or pretended. When the society has excluded one of its members by a * Tho 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 tho plication of them. The French aca- tribunal of justice entails infamy on demy says, " Bunishment is only ap- the emigrant,- -whereas a disgrace at plied to condemnations in duo course court docs not usually involve the same of law. Ej.-IIc ii only an absence caused consequence. 182 OF OUR NATIVE COUNTRY, EiC. 107 perpetual banishment, he is only banished from the lands bt book: i. that society, and it cannot hinder him from living wherever chap, xix. 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 livC 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-''^'^!' '^"'^ Avhero on earth. He derives this ri^-ht from nature, or rather iV^\„.„ „ from its Author, who has destined the earth for the habitntion right 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- § 2.30. Na- ral view of it, Ave must not forget that it is but imperfect with t^re of this respect to each particular country. For, on the other hand, "° ^*" every nation has a right to refuse admitting a foreigner into her territory, when he cannot enter it without exposing^ the nation to evident danger, or doing her a manifest injury. AVhat she owes to herself, the care of her OAvn 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. Ho\vevcr, as property could not be introduced to the pre- §2.31. Duty judice of the right acquired by every human creature, of not of nations being absolutely deprived of such things as are necessary — ^jJ^^ards no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country. But, if particular and substantial reasons prevent her from affording him an asvlum, this man has no longer any riirht to demand it — be- cause, in such a case, the country inhabited by the nation 183 108 OP OUK NATIVE COUNTRY, ETC. BOOK I. CHAP. XIX. cannot, at the same time, serve for her own use, and that of this foreigner. Now, supposing even that things are still in common, nobody can arrogate to himself the use of a thing which actually serves to supply the wants of another. Thus, a nation, whose lands are scarcely sufficient to supply the wants of the citizens, is not obliged to receive into its territo- ries a company of fugitives or exiles. Thus, it ought even absolutely to reject 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. 1 232. A If an exiled or banished man has been driven from his lation can- country for any crime, it does not belong to the nation in lot punish -^yjiich he has taken refuge to punish him for that fault com- aidts com- iiiitted in a foreign country. For, nature does not give to nittod out men or to nations any right to inflict punishment, except for )f itsterri- their own defence and safety (§ 169); whence it follows that ;ories; ^g cannot punish any but those by whom we have been in- jured. But this very reason shows, that, although the justice of each nation ought in general to be confined to the punishment common safety of mankind § 233. ex cept such as affect tho ^f crimcs Committed in its own territories, we ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and 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 or PUBLIC, COMMON, AND PRIVATE PROPERTY. 109 this is a second reason for delivering up malefactors of book i. that class to the states where their crimes have been com- ^"ap- ?[^- mittcd. (62) CHAP. XX. "^ OP PUBLIC, COMMON, AND PRIVATE PROPERTY. chap, xx. LET US now see what is the nature of the different things i 234. What contained in the country possessed by a nation, and endeavour tte Romans to establish the general principles of the law by which they ^'^'^^^ '''^* are regulated. This subject is treated by civilians under the title de reriim divisionc. 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- § 2.35. Ag- longing to the nation that possesses the country, and as form- grcgate ing the aggregate mass of its wealth. But the nation does ^''^^. ^ ° ^ not possess all those things in the same manner. Those not its divisions. divided between particular communities, or among the indi- [ HQ ] viduals of a nation, are called jjublio 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 coynmon property. There are others that belong to some body or community, termed joint 'property, res iiniversitatis ; 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 indift'erently give the name of co})i- mon property to those things that belong to it in common, in (G2) A distinction has usually been 9 Barn. & Cress. 446. {A foreign taken between cajiitnl oft'enees 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 mittcd, in order to take his trial in the in his own country. Such a right can latter, but not so in case of misdemean- onlj' exist by treaty. Comin. v. Deacon, ors. But sometimes, as upon a charge 10 Serg. i Raw. 125 ; Case 0/ Dos Saiitoi), of perjury, a foreign country will allow 2 Brocken. Rep. 493. The Cage 0/ the removal of an oiTender even in case 12obins, Bee's Rep. 266, was under the of a misdemeanor. See Ex parte Scott, treaty with Great Britain.} 24 2 U 1S5 110 OF PUBLIC, COMMON, AND BOOK I. such a manner that all the citizens may make use of them, cnxr. xx.^ ^^^ ^^ those that are possessed in the same manner by a body or community : the same rules hold good with respect to both. Finally, the property possessed by individuals is termed |;n'- vate property^ res singulorem. I 236. Two When a nation in a body takes possession of a country, wuj-s of ac- every thing that is not divided among its members remains quinng common to the whole nation, and is called inihlic i^voperty. perty!^ ^^'^°' There is a second way whereby a nation, and, in general, every community, may acqu^ire 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. 1 237. The As soon as the nation commits the reins of government to revenues of i\\Q hands of a prince, it is considered as committing to him, the public ^^ ^i^g same time, the means of governing. Since, therefore, naturaify'Tt^ *^^ income of the public property, of the domain of the the sove- State, is destined for the expenses of government, it is natu- reign's dii- 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. § 23S. The The nation may invest the superior with the sole use of its nation may common posscssions, and thus add them to the domain of the grant him gtatg. It may even cede the property of them to him. But the use and .,. • e ^^ j.- xj? property of ^"^^ ccssiou 01 the usc or property requn^es an express act ot 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. 2 239. or The people may even allow the superior the domain of tlie allow him tilings they possess in common, and reserve to themselves the the domain, ^gg ^f them in the whole or in part. Thus, the domain of a trits7i7uio J'iver, for instance, may be ceded to the prince, while the people use of them, rcscrve to tlicmselves 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, tlie 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. § 240. If the income of tlie public property, or of the domain, is Taies, not sufficient for the public wauts, the state supplies the de^ 180 TRIVATE 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 propor- ^°^^' ^ — tion to their abilities, and the advantages they reap from the society. iVll the members of civil society being equally obliged 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 ? 241. The a trust of so delicate a nature, or to grant him a power that nation may ho may so easily abuse. In establishing a domain for the !"*^^^77® '•'^ support of the sovereign and the ordinary expenses of the y^^^it of im. 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 ^ 213. 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 ^^'^^^ 7^*^ thinks proper, without giving an account to anybody. The ,^'^q^^^ 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.* (Go) All money bills, imposing a tax, dis. But Peter, Count de Lara, vigor- must originate in and bo passed by the ously opposed the measure, "contrac- llouse of Commons, and afterwards taquo nobilium manu, ex conventu dis- submittod to the lords and the king for cedit, armis tueri paratus partam armis their sanction, before they can become et virtuto a majoribus immunitatem, law. nequo passurum affirmans nobilitatis (61) This was, of course, when Yattcl opprimendaj atque novis veotigalibus wrote, and before the Revolution. vexandw ab co aditu initium fieri ; Jlau- * Too great attention cannot be ros opprimere non esse tanti, ut gravi- used in watching the imposition of ori servitute rempublicam implicari si- taxes, which, once introduced, not only nant. Rex, perieulo permotus, ab ea continue, but are so easily multiplied. — cogitatiouo desistit. Petrum nobiles, Alphonso VIII. king of Castile, be- consilio communicato, quotannis convi- sieging a city belonging to the Moors vio excipere decroverunt, ipsura et pos- (Concham urbem in Celtibcris), and teros, — navatre opera; merccdem, rei being in want of money, applied to the gestae bona> posteritati monumentum, states of his kingdom for permission to documentumque no quavis oceasione impose, on every free inhabitant, a jus libertatis imminui patiantur."' M.i.- capitation-tax of five golden marave- niASA. isr 112 OF PUBLIC, COMMON, AND BOOK I. The prince who is invested with the power of taxing his CHAP. XX. people ought by no means to consider the money thus raised ^ 243. Du- as his own property. He ought never to lose sight of the end ties of the foj. "whicli this power was granted him : the nation was willing prince with ^^ enable him to provide, as it should seem best to his wisdom, taxes. fo^ 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. § 244. Eiin- Every thing in the political society ought to tend to the nent domain good of the Community; and, since even the persons of the annexe to eitizens are subject to this rule, their property cannot be ex- reifnty. ccpted. 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 thority may be in other respects. If the sovereign disposes of the public froperty in virtue of is eminent domain, the alienation is valid, as having been made vith 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 r 113 1 a just proportion. The same rules are applicable to this case as to the loss of merchandise thrown overboard to save the vessel. Z 245. Go- Besides the eyninent domain, the sovereignty gives a right vernment of of another nature over all public, common, and private pro- 18S PRIVATE PROPERTY. 113 pevty, — tliat is, the empire, or the right of command in all book i. places of the country belonging to the nation. The supreme . ^"■^^- -^-'^- power extends to every thin^; that passes in the state, -wher- P^*^'^" l"""- ever it is transacted; and, consequently, the sovereign com-^ 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 autliority, 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 j""-^ ™f ^° of distinct bodies or corporations. lie cannot, indeed, take reelect to 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 ^*^^^<^*^ ^° to esta1)lish laws tending to this end, and, consequently, to regulate the manner in which things possessed in common are to be enjoyed. This aftair 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 desti'uctive 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 ^tion of the members ought never to lose sight of the destination of that P^^P^'y °f joint property, nor dispose of it otherw^ise than for the ad- vantage of the body, or in cases of necessity. If they alien- ate it Avith any other view, they abuse their power, and trans- gress against the duty they own to their own corporation and their posterity ; and tlie prince, in quality of common father, has a right to oppose the measure. Besides, the interest of tlic 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 a sufficient authority to take from a corporation the power of alienating their pro- iso a corpora- tion. 114 OF PUBLIC, COMMOX, AND BOOK I. perty without the consent of the sovereign, appears to me CHAP. XX. :^Q i^g ^,Q-^I Q^ foundation, and 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 iu a case of extreme necessity : — and whatever property they may have received from the sovereign is presumed to be of that nature, g 248. Use All the members of a corporation have an equal right to of common ^^iq use of its common property. But, respectino; the manner lirOI^Sl'lV Ale/ ' X O of enjoying it, the 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^jj^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 iw^eventionis) ought to be of anticipa- faithfully obscrvcd in the use of common things which can- ,lT^Tu ^ I'^ot be used by several persons at the same time. This name use 01 It. . . 1 • 1 1 • 1 1 n IS given to the right which the first comer acquires to the use of things of this nature. For instance, if I am actually dra.wing water from a common or public well, another who comes after mo 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. 2 251. The The same rule ought to be observed in regard to those .-i;mc right common things which are consumed in using them. They 190 rniVATE PROPERTY. 114 tlic person vrlio first takes possession of them with book m. tion of applyin<:r them to his own use : and a second, _i5i£i_^^ belong to the intention of apply! ■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 '^'^^''■ 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 § 2j2. Pre- of the things that belong to the public, or to a community, servation ouijht to be equally borne bv all Avho have a share in them, ^^'^ repairs 1 .1 .1 i ./ '^ . ' of common whether the necessary sums be drawn trom the common ggj^,;,^,,,^ coiTer, 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 defra}?- 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 ^^^ "ght of obliged, as the conductor of the whole nation, to watch over^^f ^°y^" . 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 sufter their necessary buildings to fall to ruin, or that they destroy their forests, he has a right to prescribe what they ouglit to do, and to put his orders in force. We have but a few words to say with respect to private §254. Pri- property : every proprietor has a right to make what use he ^«^^ P''^- pleases of his own substance, and to dispose of it as he^"'-^' pleases, when the rights of a third person are not involved in the business. The sovereign, however, as the father of his people, may and ought to set bounds to a prodigal, and to prevent his running to ruin, especially if this prodigal be the father of a family. (65) But he must take care not to (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; ^a- lay waste or even burn his own property, i-illc's case, For. 6, 3 Thomas Co. Lit. unless ho thereby endangers a third 243, n. (»i). — C. 191 115 OF PUBLIC, COMMON, AND PRIVATE PROPERTY. BOOK I. extend this right of inspection so far as to lay a restraint on CHAP. XX. j^-g subjects in the administration of their afiairs — which woukl 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 fectly free in the economy or government of their affairs as u "to reo-ida- ^^^ ^^ ^° subject to the laAvs and regulations of police made tions of po- by the sovereign. For instance, 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. I 256. In- Every man may naturally choose the person to whom he heritancos. ^Yould Icavc 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 childi-en. 192 OP THE ALIENATION OP 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 g 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 ^^ii^nate its consequence of the full and absolute domain : the exercise gj.^ 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 aifairs ; 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 958. 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 *^°° ^" ^^^^ or mortgage it but for a manifest public advantage, or in case "^P®^ • 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 ] 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- § 259. Du- tiou : he ought to watch over the preservation and prudent ''*^/' "^ the management of the public property — to stop and prevent ^''^''^'^®" 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, ^ 26O. He being naturally no more than the administrator, and not the cannot proprietor of the state, his authority, as sovereign or head of ^^^^^^^ t^® the nation, does not of itself give him a right to alienate or pgj.tv. 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 1. CHAP. XXI. §261. The nation may give him a right CO it. 52rn. Rules ou this sul)- ject with re- spect to ifeaties be- tween na- tion and nation. [118 ] of a thing substantially. If the superior exceeds his powers with respect to this property, the alienation he makes of it will be invalid, and may at any time be revoked by his 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. The nation, having the free disposal of all the property belonging to her (§ 257), may convey her right to the sove- reign, and consequently confer upon him that of alienating and mortgaging the public property. But this right not being necessary to the conductor of the state, to enable him to 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 Avith it, unless he has received full, unlimited, and absolute authority. The rules we have just established relate to alienations of public property in favour of individuals. The question assumes a different aspect when it relates to alienations made by one nation to another :f it requires other principles to decide it in the different cases that may present themselves. Let us en- 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. AVhence it follows, that, when a nation has ceded any part of its pro- perty to another, the cession ought to be deemed valid and irrevocable, as in fact it is, in virtue of the notion of p7'0- 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 Avhat 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 liim the care, and, without * See his Memoirs. t Quod domania regnorum inaUcn- abilia et semjier revocabiha dicuntur, id respectu privatoruni intelhgitur; nam 194 contra alias gcntcs divino privilegio o[)us forct. Leibnitz, Prcpfat. ad Cod. Jur. Gent. Dl^lmnat. THE PUBLIC PROPERTY. 118 reserve, given liim the right, of treating and contracting with book i. other states, it is considered as liaving invested him with all chap, xxr. the powers necessary to make a valid contract. The prince is tlien 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 iluly 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 Pf"^ ^^ o ^ , • . state, 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 coiiimon welfare and safety, and not of being at its disi)'^sal, 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: nor can she any longer lay claim to the town or province thus alienated, since she has relinquished every right she could have over it. But the province or town thus abandoned and dismembered § *64. from the state, is not obliged to receive the new master whom ^'^ ,f^ ^* ,1 , , , , , • T-» • T f. 1 the dismein- the state attempts to set over it. Benig separated trom the l,^^^^^ ,,ati\. 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 [ Hi* ] 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 Avould 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. 195 119 OF THE ALIENATION OF THE PUBLIC PROPERTY. BOOK I. CHAP. XXI §265. Whether the prince has power to dismem- ber the state. Has the prince, or the superior of whatever kind, a power to dismember the state ? We answer as Ave 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 Avhat 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, imanimously 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 tlieni. 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 reqtiired that their treaties should be registered in the parliament of Paris ; but at pi'esent even this formality seems to be laid aside. * Mezeray's History of Franco, vol. ii. p. 458. 196 OF RIVERS, STREAMS, AND LAKES. 120 BOOK I. CHAP. XXJI. CHAP.XXIL ' OF RIVERS, STREAMS, AND LAKES. WHEN a nation takes possession of a country, ^vith a vic"Wg26C. A ri- to settle there, it takes possession of every thing included in ^er that sc- it, as lands, lakes, rivers, &c. But it may happen tliat 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. (G8) 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. -111. [Palmer v. Hicks, 6 Johns. is no legal iirt'sumption that the soil Rep. ^Ti.\ of a navigable river belongs to the own- (1) {5 Wheat Rep. 374, 379; 3 Mass. ers of the adjoining lands, ex tttraque Rep. 147.} parte, or otherwise. Rex v. Smith, 2 u2 197 120 OF RIVERS, STREAMS, AND LAKES. BOOK I. 4. A long and, undisputed possession establishes the right CHAP. XXII. ^f 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 tho bed of a its courso elscwhcre, the bed belongs to the owner of the river w ich j-^ygj, . fgj, ^he bed is a part of the river; and he who had IS dried up, ' . ' , . i « i ^ ^ it •^ or takes an- appropriated to himseli the whole, had necessarily appro- other course, priated to himself all its parts. § 268. 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 "vio°-(' ) Jiaye natural or indeterminate bounds [territoria arcifinia), and it enjoys the right of alluvion ; that is to say, eyerj 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 avuhiony 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) As to what is a sufficiently long 178; 4 Dowl. & Ry. 700; 3 Barn. &, and undisturbed possession, by tho law Ores. 91, S. C; 6 Ring. IG,'!, 109; 1 of France, Jersey, and England, in Thomas Co. Lit. 47, in note ; Scultcs on general, see Bencst v. I'ipon, Knapp's Aquatic Rights ; Chitty's General Prae- Kcp. 07. tico, 199, 200. {2 Johns. Rep. 322; 3 (70) As to the rights of alluvion, or Mass. Rep. 325; 2 IL-ill's L. Journ.307; sudden derelict in general, see The King 5 Hall's L. Journ. 1, 113. | V. Yarhorough, 1 Dow Rep. New Scries, 198 OF RIVERS, STREAMS, AND LAKES. 121 boundary, ■when a settlement is made ; and wlierever 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 ^ 269. Whe- boundary line between two territories, Avhether it remains com- ther aiiu- mon to the inhabitants on each side of its banks, or whether '^^"^ P'^^- each shares half of it, or, finally, whether it belongs entirely ^^^]^^^°^ to one of them, their rights with respect to the river are in the right 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 otherM'ise 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 ^'"^^^ ^^^'°^ states, the bed which it has abandoned becomes, thencefor- ^j^^^l^g j^s 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 goincr 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 riglit of alluvion. That bed (notwith- standing what we have said in § 207) 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 alloAvable to raise any works on the bank of a 3 271. river, which have a tendency to turn its course, and to cast WoHis 199 122 OF RIVERS, STREAMS, AND LAKES. BOOK 1. it upon the opposite bank: this would be promoting our own advantage at our neighbour's expense. Each can only secure CHAP. XXII. tending to himself, and hinder the current from undermining and carry- turn the [^„ away his land. (72) current;(71) '^ "^ , ^ ^ -u^. j. r. m 2 272 or in ^ general, no person ought to build on a river, any more general, ' than elscwhcre, any work that is prejudicial to his neigh- prejudieiai bour's rights. If a river belongs to one nation, and another to the rights }^as an incontestible right to navigate it, the former cannot (73) ^^'^' erect upon it a dam or a mill Avhich might render it unfit for navigation. The right which the owners of the river possess in this case is only that of a limited property ; and, in the exercise of it, they are bound to respect the rights of others. § 273. Rules But, when two different rights to the same thing happen to in relation clash with cach Other, it is not always easy to determine to interfer- -^yhich Ought to yield to the other : the point cannot be satis- ° " ^" factorily 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 Avill become more difficult and less advantac^eous ? 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. Rexv. Pngham,%'B!\.rn. nations has been ably discussed as part & Cress. 355 ; Rex v. Trafford, 1 Barn, of the municipal law of Scotland and & Adolph. 874; 2 Man. & Ryl. 4G8,- 1 England in Menxies v. Breadalhane, Moore & Scott, 401 ; 8 B;ng. 204, (in 3 Wils. & Shaw, 235; and see The error.) King V. Lord Yarhorough, 1 Dow. Rep., (73) See note 72. New Series, 179; and Wright v. Ihnc- (74) But this doctrine seems quos- ard, 1 Sim. &, Stu, 190; Rex v. Trof- tionablo. See Wright v. How<(rd,\ Sim. ford, 1 Barn. &, Adolph, 874, and Chit- & Stu. 190 ; and ifavon v. Hill, 3 Barn. ty's General Practice, 610. j4 Dall. & Adolph. 304; Chitty's General Prac. Rep. 211 ; 13 Mass. 420, 507; 3 liar. & 191, 192. Even a right of irrigating at McHen. 441; 2 Conn. Rep. 584; Coxe's reasonable times may qualify the abso- Rep. 400. 1 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 riizht, if it be absolute, is to be exerted in its full extent, and book CHAP. xxn. the other only so far as it may be extended without prejudice- 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 wdio 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, I'^'^es. 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 "ease of a a lake which bounds a state belongs entirely to it, every in-^^'^'^" 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 thcacquisitionof it inbehalf 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. 26 201 124 OF RIVERS, STREAMS, AND LAKES. BOOK I. But, 2. If the lake insensibly undermines a part of the CHAP. XXII. opposite teiritory, 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 Avhich 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 difi"erent 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 Thc Same principles show, that if the lake insensibly forms fcTnod on an acccssiou of land on its banks, either by retiring or in any the banks other m^anncr, this increase of land belongs to the country which it joins, when that country has no other boundary than 202 OF THE SEA. 125 It is the same thin"; as alluvion on the banks of book i. CBAP. 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^^.'^'''*'^® 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 "sdiction which we have examined. Each state naturally possesses it "^^"^^.j^^^.^ 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. XXIII. IN order to complete the exposition of the principles of the ? 279. Thj law of nations with respect to the things a nation may pos- s^^' *° ties of ii:i- 135 COMMON DUTIES OF A NATION BOOK II. pilj, plainly show us that he is destined to live in society, in ■ ^^^^' ^' the interchange of mutual aid ; and, consequently, that all men are, by their very nature and essence, obliged to unite their common efforts for the perfection of their own being and that of their condition. The surest method of 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, owes to another nation every duty that one man owes to another man, ive may confidently lay doivn 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 neglectino; 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 ^en^atbQ of ^^^ ^^^^^^ "^^^^ ^^^^''^^^ ^i^'en of them in the first book of this others. worlc ma}'' 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. 214 TOWARDS OTHERS. 136 A powerful league was formed in favour of the United Pro- ,nooK- n. vinces, when threatened with the yoke of Louis XIV.* ^yhen ^'"^''- '• 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 own kingdom. For the same reason, if a nation is afflicted Avith famine, ?&• it ought all those who have provisions to spare ought to relieve her *° "'^''"^ ^ distress, ■^vithout, however, exposing themselves to want. (89) q'^^H^ ^j,^ 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 calamities. 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 Avho 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, Tlic calamities of Portugal have given Eng- land an opportunity of fulfilling the duties of humanity with that noble orenerositv 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 j c. It ought i)f other states ; it should likewise, according to its power and to contribute their want of its assistance, contribute to their perfection, ^f *!''"' P"" ' '■ fectiou of other states. * In 1672. which woukl have occasioned more de- "I" lie defeated the Turks, and oMigod struction than the most disastrous defeat them to raise the siogo of Vienna, in in battle, England supplied them with 1683. Peruvian bark, which instantly checked (S9) Ante, Prelim. ^ It. Upon this and overcame the disease. — C. principle, during the late war with J At the famous siege of Paris. 1' ranee, when tlie French troops were. ^ The earthquake by which a great extensively afiBicted with a disorder part of that city was destroyed. 215 136 COMMON DUTIES OF A NATION BOOK II, We have already shown (Prelim. § 13) that natural society imposes on it this general obligation. We are now come to r 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 Avere far from rejecting so reasonable and so laudable a request. (90) g 7. But not But, though a nation be obliged to promote, as far as lies by force. j^^ j^g pg-sYer, 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 who 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 Avhich are guilty of enormous trans- gressions of the law of nature, which treat the rr parents toith inhumanity like the Sogdians, tvhich eat human jlesh as the ancient G-auls, ^•c.*(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. provements which might diminish our (91) And see the absurdity of such home manufactures ; but the restrictions interference sarcastically well exempH- npon the exportations of artificers and fied by Cervantes in his Don Quixote, machinery were removed by 5 Geo. 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, tlie indulgence tliereby occasioning the former an in- of this liberal policy must be djsirablc; liiiitcly more severe chastisement. — C. 216 TOWARDS OTHERS. 137 COOK II. CHAP. I. h:s attributing to every independent man, and of course to every sovereign, an odd kind of right to punish faults which involve an enormous violation of the laws of nature, though tliey do not aifect 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. L ^'^^ J Since nations ouo-ht to perform these duties or offices of ?. ^- The • • ■ It*- + humanity towards each other, according as one stands in need, "°'^'^ ^° ^^' and the other can reasonably comply Avith them, — every nation o^'^gg ^j- 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 '"'giit of itself; the nation that is applied to has, on the other hand, a-'"/'^"'-^ right of judging whether the case really demands them, and^^^^^g^^ 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 Aveiglity 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 *'"" '^ "°^ '" the performance of them. The nation that unreasonably otiTerto'T^or- j'cfuscs them offends against equity, which consists in acting form th<.se 2S T 217 138 COMMON DUTIES OF A NATION BOOK II. conformably to the imperfect right of another : but thereby CHAP. I. ^Q injury is done ; injury or injustice being a trespass against offices of '- the perfect right of another ^ '"^ . .^ It is impossible that nations should mutually discharge all wrong. these several duties if they do not love each other. This is § 11. Mu- the pure source from which the offices of humanity should tuai love of procced ; they will retain the character and perfection of it. nations. Then natious will be seen sincerely and cheerfully to help each other, earnestly to promote their common welfare, and culti- vate peace, Avithout jealousy or distrust. 2 12. Each A real friendship will be seen to reign among them ; and nation ^j^ig happy State consists in a mutual affection. Every nation °"5 'j?^^^"is obliged to cultivate the friendship of other nations, and frionaship Carefully to avoid whatever 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 Avhicli nature has established amongst them ? ^ \?,. 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 country and fellow citizens, — a nation likewise, in perfecting vanta"-e of lierself. 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- r^j^^ avoid setting them a pattern of any thing evil. Imitation '' ^^^' is natural to mankind : the virtues of a celebrated nation are sometimes imitated, and much more frequently its vices and defects. ^ 1 1. To Glory being a possession of great importance to a nation, take care of as wc havc shown in a particular chapter expressly devoted their glory. ^^ ^^le subjcct,* — the duty of a nation extends even to the care of the glory of other nations. In the first place, she should, on occasion, contribute to enable them to merit true glory : secondly, she should do them in this respect all the justice due to them, and use all proper endeavours that such justice be universally done them: finally, instead of irritating, she should kindly extenuate the bad effect which some slight blemishes may produce. /^ lo. Dii- From the manner in which wc have established the obliga- fcrenee of ^^q^ q^ performing the offices of humanity, it plainly appears to be solely founded on the nature of man. Wherefore, no * Book I. chap. xr. ;!18 religion TOWARDS OTHERS. 139 nation can refuse thera to another, under pretence of its pro- book n. fessinff a different religion : to be entitled to them, it is suffi- '^^^^' ^' cient that the claimant is our fellow-creature. A conformity ought not to of belief and worship may become a new tic of friendship preclude the between nations : but no difference in these resp<5cts can Avar- |'ju^''anity rant us in laying aside the character of men, or the sentiments annexed to it. As we have already related (§ 5) some instances well worthy of imitation, let us here do justice to the pontiif 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 ships out of danger ; and his nuncio at Brussels received instructions to signify to the ministers of the states- general, that his holiness made it a rule to protect commerce and perform the duties of humanity, without regarding any diflTerence of religion. Such exalted sentiments cannot fail of raising a veneration for Benedict XIV. even amongst Pro- testants. (92) [ 140 ] IIow happy would mankind be, were these amiable precepts § 16. Rule of nature everywhere observed ! Nations would communicate '^^'^ measure to each other their products and their knowledge ; a pi'ofound^jj^^j^^^jjj^j^^ peace would prevail all over the earth, and enrich it v.'ith 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) lie wu.-i much celebrated and man, — it necessarily follows, that, ac- spoken of iti Lord Charlemout's Tra- cording to the intentions of nature, all vels in A. D. 17-12. — C. mankind must have one common in- * Here, again, let us call in the terest — Ergo unura debet esse omni- authority of Cicero to our support, bus propositum, ut eadem sit utilitas " All mankind (says that excellent nniuscujusque et universorum : quam philosopher) should lay it down as si ad so quisquo rapiat, dissolvotur their constant rule of action, that in- omnis humana consociatio. Atquc si dividual and general advantage should etiam hoc natura pra^scribit, ut homo be the same : for, if each man strives to homini, quicunque sit, ob eam ipsam grasp every advantage for himself, all c.iusam, quod is homo sit, consultum the ties of human society will be velit, necesso est, secundum eandem broken. And. if nature ordains that naturam, omnium utilitatem esse corn- man should feel interested in the wel- muuem. Dc O^c. lib. iii. cap. iv. Note fare of his fellow-man, whoever he be, En. 1707. and for the single reason that ho is u 219 140 COMMON DUTIES OF A NATION BOOK II. the present state of men, and the ordinary maxims and con- ^'"-^''- '• duct of nations, may render necessary in the practice of these precepts of nature, which are in themselves so noble and excellent. The laAv 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 Avar, 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 Averc very justly prohibited to instruct the barbarous nations in building galleys. Thus, in England, laws have been enacted (93) The same prudential consider- granted witliout equivalent to .another ation extends also in time of pca" ^^ ^^^^- mediatc figure in the fjrand society of the human race, is *"^"* ^^ independent of all earthly power, and is an assemblage of a states. " 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. m. 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- ibrmofgo- tion. The dignity, the majesty, resides originally in the vcrnment is j^ody of the State ; that of the sovereign is derived from his this'qucs^ 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 e(i[uality. 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 Btatc ouRlit form of government in a nation happens to be changed, she ^°nl™^ot'* Avill still preserve the same honours and rank of which she withstand- was before in possession. When England had abolished roy- ing any alty, Cromwcll would suffer no abatement of the honours that changes in jj^d bccn paid to the crown or to the nation ; and he every- thc form of | .j maintained the English ambassadors in the rank they its govern- ° -^ nicnt. had always possessed. § 40. In If tlic grades of precedency have been settled by treaties, this respect, or by long custom foundeji on tacit consent, it is necessary treaties and to conform to the established rule. To dispute with a prince 232 DIGNITY AND EQUALITY OF NATIONS, 150 the rank he has acquired in this manner, is doing him an book n. injury, inasmuch as it is an exi^ression of contempt for him, CHAP. III. or a viohition 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, o||&'^''^° ^<^ who received the kingdom of France, yielded precedency to ° ^^"^^ ' him the more readily, as there still remained at that time a recent idea of the majesty of the real Roman empire. His 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 croAvns, 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 oifence 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 suff"ering 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 §4i. Of the authority and what rights she thinks proper, she is equally "'^'"'^ '-^^^ * Bartolus went so far as to saj-, 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 sucii heavy complaints on j In his Republic, p. 138. the occasion, that Provana was re- y Pentlierrieder, minister plenipo- called, and the emperor ordered his tentiary of the emperor at the congress minister to suppress the deed, — atfect- of Cambray, nuule an attempt to insure uig, at the same time, a profound igno- to his muster an incontestable superi- ranee of the whole transaction : and ority and pre-eminence over all the thus the aflair was dropped. Memoirs other crowned heads. He induced of Mons. dc St. Philippe, vol. iv. p. 194. 30 u 2 233 151 DIGNITY AND EQUALITY OF NATIONS. BOOK II. free in regard to the name, tlie titles, and honours with CHAP. III. -vYhich 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 rcign 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 hiAvs, 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. § '13. Right But foreign nations are not obliged to give way to the will of other na- of a Sovereign who assumes a new title, or of a people who tions in this ^j^ij ^}^g-j. ^|j^-^,f ^^ ^j^^^ j^jjj^g ^]^gy please.f respect. * Memoirs of the House of Branden- — " Olivarius, Dominus Protector An- burg. glia?, Scotiae, et Hiberniae, Ludovico I Cromwell, in writing to Louis the XIV..Francorum Regi Christianissime Fourteenth, used the following style : Rex. — And the subscription was-.- 334 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 Juty. 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 r 153 "l 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 ^'^^'^^ '^"'^ treaties. Those who have entered into engagements in this ^^°^ way are obliged to coniorm 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 tlie 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 foinous treaty of West- amicus." The court of France was phalia, the plonipotentiarie.s of France highly olleniled at this form of address, agreed witli those of the emperor, The amba.s.sador Borocl, in a letter to " that the king and queen writing the Pensionary De Witt, dated May 25, with their own hand to the emperor, 1055, said that Cromwell's letter had and giving him the title of majesty, not been prpsontcd. and that those who he should answer them, with his own were chargod 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, 235 153 DIGNITY AND EQUALITY OF NATIONS. BOOK II. eclipsed at the revival of letters.* The emperors of Ger- CHAP. Ill, many, 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 con- jj^ general, every other mark of honour, to conform to the neml cus-^" ^^^® 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 Avith 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 treach°^^ humanity, — 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 Avho 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, Mdiich 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 39(3 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 does not recover costs, observe, in the British seas, the mark snying, we will not disparage the dig- of honour, liy lowering the flag or top- nity of the king of Spain by giving sail to an English man of war, called him costs. Ncivlctl v. Kins; of Spimi, the duly of the Jlag. See 1 Chitty's on appeal from Chancery to House of Commercial Law, 102; and see end Lords, 1 Dow P.cp. New Series, 177. 236 OF THE IIIGHT TO SECURITY, ETC. and, especially, they ouglit not to suffer that dignity to be impaired. If, then, there are titles and honours, which, by constant custom, belong to a prince, he may insist upon them ; and he ouglit 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-Avill : 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. 154 BOOK II. CHAP. III. CHAP. IV. OF THE RIGHT TO SECURITY, AND THE EFFECTS OF THE SOYE- cuap. iv. 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 Pender 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 rigid 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 '^^^^^s the make use of force and every honourable expedient against ".? ^ ° ]^' (104) As to the inck^pcndonce of nations, see in general, Cours de Droit Public. Paris, A. D. 1830, torn, part, article ii. pp. 3 to 15. 1st 237 154 OF THE RIGHT TO SECURITY, ETC. BOOK II. 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 * aratio ^^' ^'^P^^^^tion, 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- pumsimg. ^^g upon him 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 anywhere a nation of a restless and mis- ofallna- chievous disposition, ever ready to injure others, to traverse a mischie- 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 ^^ ^^ ^^ evident consequence of the liberty and independ- nation has cnce 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 interfere m interfere in the government of another. Of all the rights men? oTan- ^^^^^ ^^^ bclong 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, gi-ound of war on the part of the parent or to assist the revolted colony of an- state. Thompson v. Powlcs, 2 Simon's other before the same has been for- Kcp. 194; Taylor v. Barclay, id. 213. mally recognised as an independent Jlnte, p. 141, note 95. state by its own government; and if a 238 OF THE KIGIIT TO SECURITY, ETC. 155 empire and the care of the government : she has invested him book h. M'ith her rights ; she alone is directly interested in the manner 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. jyjjlofthe 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 Avould 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 laAvs, gives § 56. 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- interfere m fence, — every foreign power has a right to succour an op- ^g^",^"^ ^ pressed people who implore their assistance. The English sovereign justly complained of James II. The nobility and the most and Ms sub- distinguished patriots having determined to check him in theJ'^'^*^* 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 appcai-s 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 poAvers ; and, since they arc 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. 239 156 OF THE RIGHT TO SECURITY, ETC. BOOK II. lows, then, in virtue of the voluntary law of nations (see ^"^^- ^^- Prelim. § 21), that the two parties may act as having an equal right, and behave to each other accordingly till the decision of the aflFair. 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 Erance, 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 Antseas, 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- Ince o?for-' ^^^ State, it is not difficult to prove that the latter has a right eign powers ^0 oppose sucli 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. -j. -^^ 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 ^ nation, and one of the most interesting subjects on which to'rcligioir ^^^® government can be 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 a neigh- inflamed with deadly hatred against Louring prince persecuting in oonsc- 240 OF THE RIGHT TO SECURITY, ETC. 157 of causing all the affairs of religion to be decided and regu- book h. lated in a general council, could only have been introduced _2^IE^^iiIi. 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. No na- of a nation, interfere in her religious concerns, without yio- 1^"" ^an be lating her rights, and doing her an injury. Much less are ^°th^respect we allowed to employ force of arms to oblige her to receive to religion. a doctrine and a Avorship 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 Miuy 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 SECtF.ITY, ETC. BOOK II. terrible scourge of nations. Every madman will fancy he is ^"^^- ^^'- fighting in the cause of God, and every aspiring spirit will use that pretext as a cloak for his ambition. While 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- But it is an office of humanity to labour, by mild and law- cesofhu- f^^^i means, to persuade a nation to receive a religion which these mat- "^^® 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 proftered 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 laAvfully 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. §§ 128—136), we have established the rights of the nation and those of the citizens ; and thither we refer for an answer to this question. §61. cir- This is a very delicate subject; and we cannot authorize tmmspection ^^^ inconsiderate zeal for making proselytes, without endan- to I e used • . o i ./ ' ^ gering the tranquillity of all nations, and even exposmg 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, w^hile 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 lukoAvarmness, 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. 15J) "where it is received, and of rendering it useful to the man- book ii. 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 Avho 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 ^ sovereign this is all they can lawfully do, unless the persecution be car- ^^^ !." . • . lavour ot ried to an intolerable excess : then, indeed, it becomes a case those who 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 OAvn safety may also authorize them to undertake the 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. another state. »43 160 OF THE OBSERVANCE OF JUSTICE BETWEEN NATIONS. BOOK ir. CHAP. V. CHAP. V. OF THE OBSERVANCE OF JUSTICE BETWEEN NATIONS. § 63. ]^e- Justice is the basis of all society, the sure bond of all cessityofthe QQj]Qjjjgj.gg_ Human society, far from being an intercourse oflusticTL ^^ assistance and good offices, would be no longer any thing human so- t)ut a vast sccno 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- gation of all yate justice towards each other, to observe it scrupulously, nations to ^^^ carefully to abstain from every thina; that may violate it. CUltlV3.tC *^ •/ tD */ 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 qu nations, as well as from those obligations which each na- to su mit to ^-^^ owes to herself, results the rio-ht 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 med Avith the right of using force in order to assert it. In per ec one. ^^j^^ "would nature 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 liy those to the execution of sentences passed in parliaments. But I do not know that other countries according to the ncces- the tribunals of this country act in the sary and usual forms ? — On this sulijcct same manner with respect to sentences M. Van 13cuningin wrote as follows to passed in Holland; and, if they do not, M. De Witt, Oct. 15, 16CC : " 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 sec they suppose that everj judgment take efl'ect 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 injiidicio contradidorio, 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 ^"^^- ^- 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, — duces i. The or the right of making use of force against whoever attacks j?^^^° her and her rights. This is the foundation of defensive Avar. Secondly, the right to obtain justice by force, if we cannot § ^^- 2- The i-i.--i.xu-i - 1 i. u r e nghtofdoing obtain it otherwise, or to pursue our right by torce or arms. ^^^^^1^,^^ 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, yis^*^ °f P.""" in speaking of injuries in general (§ 52). The right of refus-^ ^ngmjus- ing to suffer injustice is a branch of the right to security. Let us apply to the unjust what Ave have said above (§ 53) § 70. Right of a mischievous nation. If there were a people who made °f ^^^ "^; open profession of trampling justice under foot, — Avho de- ^^"^^oains spised and violated the rights of others Avhenever they found opgniyje- an opportunity, — the interest of human society Avould author- spiscsjus- 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, Avhere 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. vi. HER CITIZENS. We have seen in the preceding chapters what are the com- § 7i. The raon duties of nations to\rards each other, — how they ought sovereign mutually to respect each other, and to abstain from all iniury ''"^^^ [? ^^' 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 tb.e body of the nation, of the '^^'^ ^° P"^®* V 2 245 161 CONCERN OF A NATION BOOK II state, of the sovereign. Private persons who are members CHAP. Yi. of 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 -'-"-' J citizens, and what are the rights and obligations of sovereigns in this respect. Whoever offends the state, injures its rights, disturbs its tranquillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and exposes himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen ; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full 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 iniury to the subiects of an- suner nis other State, much less to offend that state itself: and this, not SUDlGCtS to offend other ^nly 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 ^^"^' 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.- i-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 for the most vigilant and absolute sovereign, to model at viduaU arc j^jg pleasure all the actions of his subjects, and to confine not to be , ^ . , '' , ,. . , , 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 injured party is to consider the nation as the real author of the injury, of whicli the citizen was perhaps only the instru- §75. Con- ment. '^h^^ ^° I*!, ^^ ^^^^ offended state has in her power the individual who tjje^^y-gjjj/j has done the injury, she may Avithout scruple bring him to party. justicc and punish him. If he has escaped and returned to 246 IN THE ACTIONS OF HER CITIZENS. 102 his own country, she ought to apply to his sovereign to have book h. justice done in the crtse. ^^^^- ^'^- 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 ag- he ought to compel the transgressor to make reparation for ^''''^**''" ^ *''*' 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- boui'ing 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 Kogatory, 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 throu2;hout 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 iu 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 fortli 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-'"^'"'' . • CO I lies <1 sure an accomplice in the injury, and becomes I'csponsible party in the 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. Yi. }ias no further 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 of the senate was highly unjust, and only worthy of men who sought but a pretext to cover their ambitious enterprises. \, ■ "'. Finally, there is another case where the nation in general other case in . -i p i • n • mi • i i which the ^^ guilty 01 the crimes oi its members. Ihat 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 *7™^.^.'' and maltreat 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, with whom the love of plunder, or the fear of just punishment, is the only rule of peace and war. But these piratical adventurers are wise enough to 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. '• CHAP, vii . EFFECTS OF THE DOMAIN BETWEEN NATIONS. § 79. Gene- 'We have explained, in Chap. XVIII. Book I., how a na- ral effect of ^-^^ takcs possession of a country, and at the same time gains the domain. . ^^, -, . -, ^ ,,i /. mi^ possession oi the domain and government therot. lliat 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 ^ook n. follows that others have no right to it at all, since, if they '- — - had any, I could not freely dispose of it. The private domain of the citizens may be limited and restrained in several ways by the laws of the state, and it always is so by the eminent domain of the sovereign ; but the general domain of the 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 domain of the nation extends to every thing she pos- § 80. What sesses by a just title : it comprehends her ancient and original '^ compre- possessions, and all her acquisitions made by means which are th" domain just in themselves, or admitted as such among nations, — con- of 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 ■ ^^.^' ^^^"^ 1-111 1 r. 1 • • 1 '^ *^"^ P™" the right she has over the property oi her citizens, because perty of the it constitutes a part of the sum total of her riches, and aug- nation, with ments her power. She is interested in that property by her '■espect to obligation to protect all her members. In short, it cannot be j"'^'^'^ "^" 1 ° . . ^ . ,',,.. tions. 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 Avhole, 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. Acon- 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 '^"* pnnci- the latter nation until the debt be discharged. This maxim ^ ^' is of great use, as shall hereafter be shown. § g3_ (jo„. 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- °^ ^^"^ ."^' tend to possess it in subjection to any other power : and, can ,hc"sov( we suppose an independent nation not vested with the absolute reignty 3:i 249 sove- 165 EFFECTS OF THE DOMAIN BETWEEN NATIONS. BOOK n. command in her domestic concerns ? Thus, we have already CHAP. Yii. observed (Book I, § 205), that, in taking possession of a country, the nation is presumed to take possession of its government at the same time. We shall here proceed further, and show the natural connection of these two rights in an in- dependent nation. How could she govern herself at her own pleasure in the country she inhabits, if she cannot truly and absolutely dispose of it ? And hoAv 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 apart 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 liigh domain, Avhich 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 comphiints. 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 tliis maxim, with great strength of evidence, on occasion of the Prussian vessels seized and declared lawful prizes during the last war.* • Sec the re[)ort made to the King Murray. It is an excellent piece on of Great Britain by Sir George Ijco, the law of nations. Dr. Paul, 8ir Dudley Kydcr, and Mr. 250 EFFECTS OF THE DOMAIN BETWEEN NATIONS. 166 What is here said has no rehition to the merits of that par- book h. ticuhir cause, since they must depend on facts. chap, vn. In consequence of these rights of jurisdiction, the decisions §85. Effects made by the judge of the place within the extent of his power of the juns- ought to be respected, and to take effect even in foreign coun- fo^eio-n tries. For instance, it belongs to the domestic judge to nomi- coumries. 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 ofcondcmnation, pronounced in a court of competent jurisdiction, is essential, completely to transfer the legal interest in property captured as prize, {per Sir W. Scott, in The Flad Oyen, 1 Rol). Kep. 1 15). 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 I'ostle. Universal Diet, of Trade and Commerce, article Silesia, 4th ed. ; and 1 Col. .luriil. 133; and see Linilu v. Rodney, 2 Doug. 613, and Le Cuiu- v. Eden, id. 594.) Cue rule was there liiid down, that the condemnation must have been pronounced by a court be- loiigiii):; to the belligerent country. (See id., and Havelovk v. Rovkwood, Atche- son's Kep. 7 & 8 ; 8 Term Rep. 288 ; 1 Col. Jurid. 130.) Secondly, the court must have, at the time it pronounced sentence ofcondcmnation, actually sat in the roun'.ry to which it belonged, and not within the dominions of any foreign prince, whether neutral or an ally ; for, otlicrwise, a captor might have innu- merable seatJi of war, and elude the fair chance of recaption whilst the vessel or property was in progress towards a proper condemning port (Havelock v. Rockwood, Atcheson's Rep. 8 & 49; The Flad Oyen, I Rob. Rep. 11.5, 8 Term Rep. 270, in notes.) Thirdl)', 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 I)ronounced. — Per Sir W. Scott, in The Flad Oyen, 1 Rob. Rep. 115, where see some exceptions ; and see also Havelock v. Rockwood, Atch. Rep. 49; {Jolly v. Tiie Nepiune, 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 ; Lindo v. Rod- ney ^ 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 lixcd 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 — (^ilexander, 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 sh;ill be admitted as prima facie valid and binding on the parties in all other countries, but not conchtsively so. (See the cases referred to in note (u) to Noirlii v. Ross, 2 Barn. & Adolph. 765; and sec Frankland v. M-Gus!y, Knapp's Rop. 295; 1 Ves. 159; 2 Strange, 733 ; 2 Bing. 380 ; 3 Bing. 353 ; 4 Barn. 6c Cres. 637 ; Tarlcton v. Tarleton, 4 Maule & Sel. 20 ; Kennedy V. CassHis, 2 Swanst. 325); {Calhoun 251 166 EFFECTS OF THE DOMAIN BETWEEN NATIONS. BOOK II. CHAP. VII. nations, which has an eye to the common advantage and the good 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. Grnry, 1 Wash. C. C. Rep. 219.}. And it was held, that a rlecree of the sale of a ship made in an Ame- rican court of competent jurisdiction, pending war with this country, w^as to be received in the Court of Admiralty in England as legally operative. (The Experimoits, 2 Dods. Rep. 46, 47) ; {Thirty, &c. v. Boyle, 9 Cranch, 191}. So, a inarriage, 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. 10.3, 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 Howell'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 Phd- 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 w.M'Gusly, 1 Knapp's Rep. 274 ; Buchanan v. Eucker, 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 4s 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 Roven, 2 Vern. 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. Bulkeley, 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. (Fosler 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. Ross., 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 fare 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 16Y2, even with respect book n to a sovereign. The abbe D'Orldans, sovereign prince of chap, yh. Neufchatel, in Switzerhmd, being incapable of managing his f 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, hiid 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 hill 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 f)laintilT for the debt in respect of which the bills were given, notwithstanding the de- cree. {NovelU V. Rossi, 2 Barn. & Adolp. 757.) And, upon appeal to the Privj'- Council, a decree of the court of jus- tice of Demerara, for a sum of money due upon three foreign judgments in St. Vincent's, was reversed, on the ground that those judgments had been improperly obtained. (Fraii/dund 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. (Biichaitan v. Rucker, 1 Campb. 63, 9 East Rep. 192; Cavan V. Stewart, 1 Stark. Rep. .52,5 ; Frank- land V. M'Gusty, Knapp's Rep. 304.) But, to render a foreign judgment void, on the ground that it is contrary to the law of the country where it was given, or to reason and justice, it must be shown clearly and unequivocally to be so. {Beajuet v. McCarthy, 3 Barn. & Adolp. 951.) But, if the error do not appear upou the face of the proceeding and the party complaining of the judg- ment himself was misled, and sub- mitted to the decision instead of pro- testing agiunst it, he is too late to com- plain upon an appeal against it. (3Iac- allisterv. Macallistcr, 4 Wilson & Shaw, 142, 147.) And where the law of a British colony required, that, on a suit instituted against an absent party, the process should be served upon the King's .\ttorney-Gcneral in the colony, but it was not expressly provided that 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, viherc the defendant had been domiciled in that country, and had left property there. (^Douglas v. FoiTest.) 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 and attachment, which ought to have been successive proceedings, in default of appearance to the former, were is- sued against the defendant at the same time, and returnable at the same time, and to which the defendant never ap- peared (3 Barn. & Cres. 772 ; 5 Dowl. &. Ryi. 719, S. C.) ; and it seems that the judgment of an inferior court may be avoided, by proof that the cause of action did not arise within the jurisdic- tion of the court. (Willes, 36 n.; 2 Bing. 213.) With respect to the proof of foreign judgments and decrees in England, it has been decided, that an exemplification of a sentence in Holland under the common seal of the States, may be read in evidence in a suit in Chancery. Anon. 9 Mod. 56. W 253 167 EFFECTS OF THE DOMAIN BETWEEN NATIONS. BOOK II. CHAP. VII. Wills and testaments. circumstance of her having been nominated guardian by the . 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 * 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 wdl 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 every country is bound to construe it accordingly. (Trotter v. Trotter, 3 Wilson & Shaw, Rep. on Appeal Cases, 407, 414, — in House of Lords, appeal from Scotland.) And, therefore, where a 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, inelTectual 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 ronsequences of that construction, tnust be determined by the law of the land where it was made; and ivhere the testator had his dominie, 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 arc 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, domiciledin 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, (An- strulher 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. (Siewarl v. EFFECTS OF THE DOMAIN BETWEEN NATIONS. 167 to its form, can only be decided by the domestic judge, whose book ii. bcntence delivered inform ought to be everywhere ackuow- c hap, yii. 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 abb(i D' Orleans above mentioned having appointed the prince of Conti his universal legatee, — the three estates of Ncufchatel, without waiting till the parlia- ment of Paris should pronounce their decision on the question of two contradictory wills made by the abb<^ D'Orldans, 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 ^}^^ uncul- she has devolved her right, is authorized to dispose of those pi^^es 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 Avas of no use to them : but those lands which the}' 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 humanity, and to the particular "'^ **^^ "r. " respect. Ttiaryal, 11 Ves. 657.) So, if a Dutch- (Anon. 9 Mod. 66, and see Bowaman man he possessed of real estate in Hoi- v. Reeve, Pre. Ch. 577.) A will of land, and personal estate in England, property entirely abroad may he proved and devise his real estate to A., and there. {Jaunay v. ^calcy, 1 Vern. 397.) his personal to IJ., the personal shall * 8icut otrlum diis. ita terras generi he lirst applied to pay debts in Hoi- mortaliuni datas; qutcque vacua?, eas land, though real estate is liable there, publicas esse. — Tacit. 265 168 EFFECTS OF THE DOMAIN BETWEEN NATIONS. BOOK II. advantage of the state, to give those desert tracts to foreign- _ CHAP. VII. gj,g ^^.|^^ ^j.g 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 Avorld to a degree of power which has considerably increased that of the nation. Thus, also, the king of Prussia endeavours to re-people his states laid waste by the calamities of former wars. ^ 88. Right The nation that possesses a country is at liberty to leave of possess- -j-j ^j^g primitive state of communion certain things that have thathavTno^^ J^^ ^^ owucr, or to appropriate to herself the right of owner. possessing tlioso thiugs, 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. I 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- ^erj-Jtoj-ieg to another nation, or to foreigners in general, since lion* . . 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. § 90. It is Whoever agrees that robbery is a crime, and that we arc notaiiowa- j^^^ allowcd to take forcible possession of our neighbour's a natio "out.P^'^P^^'^J' will 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, ^YiQ extreme inequality of climates and soils, every people ought to be contented with that which has ftllen to tljcir share. [ 169 ] Will the conductors of nations despise a rule tliat 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 ir. and who paid still less regard to the laws of justice. Csesar 5".^^' ^"- 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 arc conquerors, who, aspiring after nothing more ^ 91, nor to than the extension of the boundaries of their dominions, with- extend by out expelling the inhabitants from a country, content them- ^''"^'^°^® ^^® selves Avith subduing them; — a violence less barbarous, but ^11""^.^^ " not less unjust : while they spare the propert}^ of individuals, they seize all the rights of the nation, and of the sovereign. Since the least encroachment on the territory of another ^ 92. tLo 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 territories occasion of quarrel, the limits of territories ought to be marked ^^^g^j^u^ 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 ? \Ye should not only refrain from usurping the territory of ^ 93. Vioia- others ; we should also respect, and abstain from every act t'O" of ter- contrary to the rights of the sovereign : for, a foreign nation '"''*""^'- can claini no right in it (§ 79). AVe 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 territorv. The sovereign may forbid the entrance of his territory (> 1)4. Pro- hibition to (109) See further as to the subject & 84, 95 : Marten's Law of Nations, enter the of this section, 1 Chit. Com. Law, 73 15.3. ttrritory. 33 w2 2i>7 (109) 170 EFFECTS OF THE DOMAIN BETWEEN NATIONS. BOOK 11. cither to foreigners in general or in particular cases, or to CHAP. Mf. g(3j.|;a,;ri persons or for certain particular purposes, according as he may tliink 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 eifectual. 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 Avas 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 Avas 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. i( 9.j. A If at the same time two or more nations discover and take ■ountry pos- possession of an island or any other desert land without an ) But SCO ante, 105, and note. (115) Ante, 167. and note : and see ** In Ills Rppublio, book i. cliiip. vi. Valtel cited, Anntnitlicr v. C/uiImer, 2 (114) But specific performance of an Sim. Rep. 4; but see Trotter v. Trotler, agreement rehitiug to the boundaries 3 Wil^. i Shaw, 407, 414, and onfc, 1G7, of two provinces in Ameriea, may be en- in notes; and see Anon. 9 Mod. CC ; forced by bill in chancery in England, Boipaman v. Reeve, Pro. Ch. 577, ante, if the parlies be within the jurisdictioa. 173, note. (ToiiH V, Baltimore, I Vcs. sen. 444.) 2G7 175 RULES WITH RESPECT TO FOREIGNERS. BOOK n. CHAP, viir case, he will be obliged to observe the forms which they pre- scribe, if he would 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 Avith 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 Avhere 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, Avith 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. What we have established in tlie three preceding sections is sufficient to show with how little jut^ticc the crown, in some 208 g 112. Es- cheatage COOK II. CHAI'. VIII. RULES AVITH RESPECT TO FOREIGNERS. 176 Htatcs, lays claim to the effects left there by a foreigner at his death. This practice is founded on what is called escheat- age, by which foreigners are excluded from all inheritances (or doctrine in the state, either of tlie property of a citizen or that of an of^«^'e»ai^c.) 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."t We cannot suppose that so wise a people retoined 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 escheatageis 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 ivitldn the limits of the empire to disj^ose of their substance by will, or, if they died intestate, to have their nearest relations for heirs.'l But Bodinus complains that this edict is but ill executed. Why does there still re- [ 1^^ ] main any vestige of so barbarous a law in Europe, which is now so enlightened and so full of humanity V The law of nature cannot suffer it to bo put in practice except by way of retaliation. This is the use made of it by the hing 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 Avhich subject the Saxons to a similar law. The right of traite foraine (called in Latin jus detractus) ? ii3. The is more conformable to justice and the mutual obligation of "s^^^f nations. We give this name to the riirht by virtue of which "".'''"• "' the sovereign retanis a moderate portion of the property cither 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 aliiHwjc in general, and the same, notwithstanding a subsequent tl\o jealous provisions in England war — Sutton v. Sutton, 1 Russ. & Myl. against foreigners, see 1 Chitty's Coin- Rep. G6?>. morcial Law, 108 to 109, See exoep- * De Jure Belli et Paois, lib. ii. cap. tions in treaty with America, and de- vi. <} H. cisions thereon with respect to Anie- f Digest, lib. xlix. tit. xv. De Cap- rieans who were seised of lauds in tivis, ct Postlimin. (ireaf Britain, being allowed to retain J His Republic, book i. chap. vi. x2 2C9 177 RULES WITH RESPECT TO FOREIGNERS. BOOK 11. that property is a loss to the state, she may fairly receive an CHAP. VIII. gq^i^.^ijig compensation for it. g 114. Im- Every state has the liberty of granting or refusing to movable foreigners the power of possessing lands or other immovable possessed pi'opcrty withiu 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. (S 115. Mar- There exists no natural impediment to prevent foreigners nages of from Contracting marriages in the state. But, if these mar- aliens, (iis) * ° ' (117) By the municipal law of Great Britain, no alien can inherit or hold real property. Thus, Doe v. Acldain, 2 Bar. & Cress. 799, establishes that a person born in the United States, since 1783, when the two countries were separated, cannot inherit lands in England ; and the same point was after- wards decided in Doc d. AncJunnti/ v. Mulcaster, 5 Barn. & Cres. 771. To this rule some exemptions have been oc- i.a^ioiially introduced by express treaty intended to be pcrm:'.nent, as regards such exception, and strengthened by statute; as under the treaty of 1794, l)ctwcen Groat Britain and America, and the act .37 Geo. HI. c. 97, under which Auiorican citizens who held lands in Great Britain, on 28 Oct. 1795, and their heirs and assigns, are at nil times to be considered, so far as regards those lands, not as aliens, but as native sub- jects of Groat Britain, and this, not- withstanding a subsequent war and the adherence of tlio citizen to Ame- rica whilst at war with (Jlrcat Britain, {Sutton V. Sutton, 1 Russ. & M. C(j.".), and the consequent confliction of duties as regards tho American citizen seised of such estate. But, as alienage sub- jects no party to any indictment or pe- nalty, an alien must answer a bill of 270 discovery filed to ascertain whether he has purchased land. (Du2ilesscs v. At- torney-General, 1 Bro. P. C. 415 ; 2 Vcs. 286.) (118) The validity of a marriage celebrated in a foreign country must be determined in an English court by the lex loci where tho marriage was solemnized ; and, therefore, on a plea of coverture, where the parties, who were British subjects, were married in France, it was held, that, if the mar- riage would not be valid in that coun- try, according to tho municipal law there, it would not bo valid in this countr}'. It was even further held that a printed copy of the " Cinq Codes" of France, produced by tho French vice-consul resident in London, pur- chased by him at a bookseller's shop in Paris, was properly received as evi- dence of tho law of France upon which tho court would act ; and Abbott, C. J., said : Tho general rule certainly is, that tho written law of a foreign coun- try must be proved by an e.'camined copy thereof before it can be acted upon in an English court; but, accord- ing to my recollection, printed books upon tho subject of the hiw of Spain were referred to and acted ujjon in argument in Sir 'I'lionios /'ii-ion'x case. RIGHTS WHICH BELONG TO ALL NATIONS. 177 CHAP. vin. 1 iagcs are found prejudicial or dangerous to a nation, she has book h. :i right, and is even in duty bound to prohibit them, or to subject to certain conditions the permission to contract them : an(i, as it belongs to the nation or to her sovereign to deter- mine what appears most conchicive to the welfare of the state, other nations ought to acquiesce in the regulations -whicli 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 SAvitzerland a citizen cannot marry a foreign woman, unless he pi-ovc that she brings liim in mar- riage a certain sum fixed by the law. 0]lAr. IX. .. [ 178 ] OF THE RIG UTS RETAINED BY ALL NATIONS AFTER THE chap, ix. INTRODUCTION OF DO.VIAIN AND PROPERTY. IF an obligation, as wo liave before observed, gives a right ? iiG. What to those things Avithout which it cannot be fulfilled, every ab-'i'"ethe solute, necessary, and indispensable obligation produces in ^\^^^^ "^ this manner rights equally absolute, necessary, and indefea- ^'^„not i^e** 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 notliing can dispense with their fulfilling their natural obligations. In the primitive state i^f conmuuiion, men had, without dis-^ in. Right tinction, a right to the use of every thing, as far as was ne- ^^^'^^ remain- cessary to the discharge of their natural obligations. And, '"? ^f*?™ '^® as nothing could deprive them of this right, the introduction stTte'ofTom- of domain and property could not take place Avithout leaving munior. to every man the necessary use of things, — that is to sa}^ the use absolutely rc([uired for the fidfdment of natural obli- gations. AVe cannot, then, suppose the introduction to have taken ])laee without this tacit restriction, that every man shoidd 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. Tliis right is a necessary remnant of the primitive state of comnumion. Notwithstanding the domain of nations, therefore, each pi^- Right nation still retains some right to what is possessed by others, '"^''^^"^^ ''^ in those cases where she would find herself deprived of the '"'^ r''*"" :is ovideiu'o of the law of that oountry, of Franco, {f.acon v. Ili'^yhia, 1 Dowl- aiul. therefore, I shall net upon that ing A Ryland. Ni. Pri. Cases, .*?S: :? authority, and receive the iirinted copy Stark. Rep. 176, S. C. ; Ihttln- v. fWc- now produced .is evidence of the law hiuii, Anibl. 30.3.) 271 178 RIGHTS WHICH BELONG TO ALL NATIONS. BOOK II. necessary use of certain things if she were to be absolutely debarred from using them by the consideration of their be- CHAP. IX. property of jj^g other people's property. \\c ought carefully to weigh every circumstance in order to make a just application of this principle. g 119. Right I say the same of the rigJtt of necessity. We thus call the of necessity. j.jg}-^t-^vhich 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 jg jj^ y^^xit of cvcry thing is not obliged to starve because all provisions pj-ppg^ty jg vcsted in others. When, therefore, a nation is (119) 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 Avhich 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, Avith a part of his crew, and landed on an Indian coast, where the bar- barous inhabitants refusing him provisions, tlic Dutch obtained them sword in hand.* g 121. Right In the same manner, if a nation has a pressing want of the of making gJiipg^ wagons, liorscs, or even the personal labour of foreign- ^l'^ " .i"^. crs, she may make use of them, either bv free consent or bv thing.? that ' -iiii ■ i" ii *' belong to lorcc, provulcd 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 whicli happen to be in her ports ; but she pays a compensation for the services performed by them. § 122. Right Let us say a few words on a more singular case, since aii- of carrying thors havc treated of it — a case in which at present, people off women. (119) See the doctrine of Preemption, ■^- Bonketoe's Voyage, in the Voyage? ] Chitty's Com. L;iw. 103, 1 01, 105, 416, of the Dutch to the East Indies. 447. 272 RIGHTS WHICH BELONG TO ALL NATIONS, 179 are never reduced to employ force. A nation cannot preserve book h. and perpetuate itself, except by propagation. A nation of ^°^^' ^^' - men has, therefore, a right to procure Avomen, Avho 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 oft' by force — a circumstance which has not been attended to by those who have decided, without restriction, that the Koinans 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 llomans for their lawful husbands. We may further add, that, if the llomans, as many pretend, were originally only a band of robbers united under llomulus, 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 Avith 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 § 123. Right of communion, in which the entire earth was common to all ^^ passage. mankind, and the passage was everywhere free to each indi-^^"*^^ 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 riglit without paying duo regard to the private rights of others. The efl'ect 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 tho law of humanity ■(■ WoUii Jus Gent. (J .3tl. docs not seem to oblige us to grant pas- (120) Seo fully 1 Chitty's Com.L.,S4; sage to any other goods except such as are Grotius, book ii. cli:ip. ii. j). ]5;t. states absolutely necessary for the purpose of that n nation is bound to griuit free pas- their ll/v to whom they are thus con- sage without reserve or diserotiou. Rut veyed.— PuflT. book iii. chap. iii. § 6, PulTendorf appoars to agree with Vattil. p. 29. "■> 27S 180 RIGHTS WHICH BELONG TO ALL NATIONS. BOOK ir. cogent than all his reasons to the contrary. Such is the right cHAP ^ ix^ ^|> necessity: this authorizes an act on your part, which on other occasions would be unlawful, viz. an infringement of the right of domain. AVhen 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 passa.ge 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. >,V2i. and of The right of passage through a country would in most cases procuring \)q ugeless, without that of procuring necessaries at a fair necessaries, p^.j^^g . ^^^ ^^g have already shown (§ 120) that in case of ne- cessity it is lawful to take provisions even by force. ^ 125. Right In speaking of exile and banishment, we have observed of dwelling (Book I. §§ 229 — 231) that every man has a right to dwell in a orcign gQi^-jg-^yi^gj^-g upon earth. What we have shown with respect country. .,...^ , ,., , . -^ ^ to individuals may be applied to whole nations. It 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 baud of foreigners to settle in it for ever : she may even dismiss [ 1<*^1 ] 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 Avhat is sufficient for them. But, even in this case, their necessity gives them only the right of habitation; and they arc bound to submit to all the conditions, not absolutely intolerable, which may be im- posed on them l)y 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 i-onuiant of tin! primitive state of communion. ^ 126. We have been occasionally oljliged to anticipate tlie subject Things of Qf ^jjg pi-esent chapter, in or tureiffners nation. Every state ouglit, doubtless, to gra.nt to so untor- ^j^^, (j^gi^g tunato 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 Gcpidiie, Vandals, Goths, and other barbarians.* If the sovereign finds that such a step w^ould be attended with too great an inconvenience or danger, he has a right to refus?o 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 wdll 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 g 137. Right are generally permitted to foreigners, as, for instance, tra- ^^^^'ruJug * Vopiscus, Prob. c. xviii. — Atninian. seized, that it was not just for them to iMarcell. lib. xxxi. — Socrat. Hist. Ecclcs. invade tho territories of others, since lib. iv. 0. 28. they bad not been able to defend their "I" Cresar replied to tho Tcnchtheri own. — Ncque verum esse, qui stios fines and Usipctes, who wanted to retain tueri von potuen'jit, alicnos occupare. Do possession of the territories they had Dello Gallico, lib. iv. cap. vi. 279 185 BOOK II. CHAP. X. from a ge- neral per- mission. [186] § 138. A right grant- ed as a fa- vour. g 139. The nation ought to be cour- teous. HOW A NATION IS TO USE HER RIGHT OP DOMAIN. veiling freely througli the country without any express per- mission, marrying there, buying or selling merchandise, hunt- ino-, fishing, &c., we cannot exclude any one nation from the benefit of the general permission, without doing her an in- jury, unless there be some particular and lawful reason for refusincr 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. As to rights of this nature granted to one or more nations for particular reasons, they are conferred on them as favours, either by treaty, or through gratitude for some particular 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. Humanity is not confined to the bare grant of a permission to foreign nations to make an innocent use of what belongs to us : it moreover requires that we should even facilitate to them the means of deriving advantage from it, so far as we can do this without injury to ourselves. Thus, it becomes a well-reo-ulated state to promote the general establishment of inns where travellers may procure lodging and food at a fair pi-ice, — to watch over their safety, — and to see that they be treated with equity and humanity. A polite nation should ('ive 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, Avill at the same time render 2S0 OF USUCAPTION AND PRESCUIPTIOX AMONG NATIONS. 186 CHAP. essential services to liis countiy. Glory is the certain reward book n. of virtue; and the good-Avill which is gained by an amia-. 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) cnAP. xi. LET us conclude what relates to domain and property with an examination of a celebrated question on which the learned are much divided. It is asked whether usucaption and pre- scription can take place between independent nations and states. Usiicajjtion is the acquisition of domain founded on a long ^ i40. De- possession, uninterrupted and undisputed — that is to say, finition of an acquisition solely proved by this possession. Wolf defines "^Y'^p^^°^ it, an acquisition of domain founded on a presumed desertion. scripUon. 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 Usueap., says, in conformity to the principles of the Roman law, that usu- caption 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 usucaption. Prescription is the exclusion of all pretensions to a right — an exclusion founded on the length of time during which that right has been neglected : or, according to Wolf's definition, it is the loss of an inherent right by virtue of a presumed consent. This definition, too, is just ; that is, it explains how a right mav be forfeited by long neglect ; and it afrrees •with the nominal definition we give of the term, prescription, in which we confine ourselves to the meaning usually annexed to the word. As to the rest, the term usucaption is but lit- tle used in French ; and the word prescription implies, in that (123) AVe have seen that twenty years' creates a right. See ante, 125 to 127; undisturbod possession or enjoyment of and see enest 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 y2 2SI 187 . OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. itooK n. language, every thing expressed by the Latin terms usucapio -^•^''" '''• and prxseriptio : wherefore we shall make use of the word prescription wherever we have not particular reasons for em- ploying the other. I lu. Usu. Now, to decide the question we have proposed, we must caption iiud fii-gt SCO Avliethcr usucaptiou and prescription are derived from proscription ^j^^ ^^^^ ^^ nature. Many illustrious authors have asserted the law of '^'^^ provcd them to be so.* Though in this treatise we fre- nature. qucutly supposc the reader acquainted with the law of nature, it is proper in this place to establish the decision, since the aifair 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 supposc, 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 Avith 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 hiAv 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 * Sec Grotius de Jure Belli et Pacis, Gent. lib. iv. cap. .xii. — and especially lib. ii. cap. iv. — Pufiendorf, Jus Nat. et WolQus, Jus Nat. part iii. cap. vii. 282 - ' ■ OF USUCAPTION AND PllESCIlIPTION AMONG NATIONS, 188 HOOK II. CITAP. XI. entirely renounced and abandoned it. This is what forms the absolute presumption [juris etdejure) 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 J 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 trutli ? 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^2. What lute or lawful presumption, it has no foundation, if the pi-o-l"'""'!"!**"' prietor has not really neglected his right. This condition f^„! ordinary implies throe particulars : 1, that the proprietor cannot allege proscription. 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 ; — 8, 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 II. being incapable of producing confusion and rendering doubt- ^°^^' ^^' ful the respective rights of the parties, is not sufficient to found or authorize a presumption of relinquishment. It is impossible to determine by the law of nature the number of years required to found a prescription : this depends on the nature of the property disputed, and the circumstances of the case, g 143. Im- What we have remarked in the preceding section, relates memorial ^.^ ordinary prescription. There is another called immemo- ' rfa?, 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 Avere 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. z 144. In cases of ordinary prescription, the same argument can- ciaimant ai- not be uscd against a claimant who alleges just reasons for leging rea- }jjg gilence, as, the impossibility of speaking, or a well-founded sons for his ^^^.^^ ^^^^ bccausc there is then 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. § 145. Pro- It is also very evident that we cannot plead presci-iption prietor suf- jj^ opposition to a proprietor who, being for the present un- ficientiy ^-^^^ ^^ prosccute his right, confines himself to a notification, that he°does hy 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. g 146. Pre- Every proprietor who expressly commits, or omits, certain scription acts, Avhicli he cannot commit or omit without renouncing his founded on j-jght, Sufficiently indicates by such commission or omission 284 OF USUCAPTIOX AXD PilESCRIPTIOX AMOXG NATIONS. 190 that it is not liis intention to }3reserve it, unless, by an express book n. reservation, he declare the contrary. We are undoubtedly _!iii^ authorized to consider as true what he sufficiently manifests ^^^ actions on occasions -where he ought to declare the truth: conse- ° j^ J^.^^*^"" quently, Ave 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^ur. 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 diiferent states. For, the law of nations is but ^^etween na- the law of nature applied to nations in a manner suitable to uons. 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. Vv'ere 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 ? i-is. More rights of usucaption and prescription are often more difficult ^^'fficuit be- in their application, so far as they are founded on a presump- J^^*^^ ^"''" tion drawn from long silence. Nobody is ignorant how dan- found them gerous it commonly is for a weak state even to hint a claim on a prc- to the possessions of a powerful monarch. In such a case, sumptivc therefore, it is not easy to deduce from long silence a legal""*" '°"' 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 arc other principles that establish the use and jj 149. other force of prescription between nations. The tranquillity of principles the people, the safety of states, the happiness of the human *''''* enforce race, do not allow that the possessions, empire, and other (-yn 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 NATIONS. BOOK II. 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 vfith. 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, Avhat Ave have said respect- ing it (§ 143) is sufiicient to convince every one that it ought necessarily to take place between nations. ? 150. Ef- Usucaption and prescription being so necessary to the tran- recis of the quillity and happiness of human society, it is justly presumed voluntary ^j^jj|. r^j^ nations havc consented to admit the lawful and rea- tions on this 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- r 102 ] 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 bofia 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. agree- are accomplished by one single act, and not by repeated acts. ^^^^^^ ^}' These compacts are perfected in their execution once for all : treaties receive a successive execution whose duration equals that of the treaty. Public treaties can only be made by the superior powers, ? 154. By by sovereigns, who contract in the name of the state. Thus, ^y^o"i ti"^^- conventions, made between sovereigns respecting their own^'^Y'^^ 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 poAvers, 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 sec Book rV. Chap. II. kc., page 432 to each separate treaty. 2 Chitty's Com. 452, I Chitty's Comuiereinl Law, 38 to Law. p. 183. 193 OF TREATIES OF ALLIANCE. BOOK 11. free cities of Germany, though dependent on the emperor CHAP. XII. ^^^^ ^i^g 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 SAvitzerland, 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. Whe- As a state that has put herself under the protection of an- ther a state Q^j^gj. j^.^g j-jq|; qj-^ ^[^^^ account forfeited her character of sove- under pro- . ' ,-p, i t p -i r\ci\ i i • i tcction may ^'^igntv (liooK 1. § Ivz), she may make treaties and contract make trea- alliances, unlcss 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 arc 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. § 156. Trea- Sovereigns treat with each other through the medium of ties con- agcnts or proxies wdio are invested with sufficient powders for c u(. et )y ^YiQ purpose, and are commonly called plenipotentiaries. To ijroxios or- *^ ix pienipoten- their officc we may apply all the rules of natural law which tiaries. rcspcct things done by commission. The rights of the proxy are determined by the instructions that are given him : he must not deviate from them ; but every promise which he makes in the terms of his commission, and within the extent of his powers, is binding on his constituent. At present, in order to avoid all danger and difficulty, princes reserve to themselves the power of ratifying what has been concluded upon in their name by their ministers. The plenipotentiary commission is but a procuration cum libera. If this commission were to have its full eftect, 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 ratifico.tion, there is less danger in vesting him Avith unlimited powers. But, before a prince can honourably [ 1L>4 ] 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. § 157. Va- A treaty is valid if there be no defect in the manner in lidity of which it lias been concluded : and for this purpose nothing treaties. niorc Can be required than a sufficient power in the contract- ing parties, and their mutual consent sufficiently declared, g 158. Ill- An injury cannot, then, render a treaty invalid. He who jury does enters into engagements ought carefully to Aveigh every thing 2S8 AND OTHER PUBLIC TREATIES. 194 before he concludes them ; he may do what he pleases with book ii, his own property, forego his rights, and renounce his advan- chap, xii. 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 °f "^tions in his treaties. And, if it happens that a treaty which he has '^^^ respect, 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 sufficiejit to invalidate it, the case is not the same with ^j^y of trea- those inconveniences that would lead to the ruin of the nation. ^''^^ ^"hich c- • ,^ ^ • n ^ • • ^re perni- fcmce, m tne lormation or every treaty, the contracting parties cious 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 [ 105 "1 conductor of a nation has the power to enter into eno-ao-e- 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 thino- 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 bin^ling 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§i6i. Nul- trcaty concluded for an unjust or dishonest purpose is abso- % ^^ trea- lutely null and void, — nobody havinn; a ri";ht to ensa^e to do l^^^ '"""''^ "^ o o o o for an unjust * See the French historians. 37 Z 289 195 OF TREATIES OF ALLIANCE, BOOK IT. tilings contrary to the law of nature. Thus, an offensive CHAP. XII. alliance, made for the purpose of plundering a nation from or dishonest ■\vliom no injury has been received, may or rather ought to be purpose. broken. §i62.Whe- It is asked, whether it be allowable to contract an alliance ther an alli- y^r[i]^ ^ nation that does not profess the true religion, and contracted ^ "^^'^<5ther 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- don^° '" gotten ; but we may venture to believe that it would be super- iluous 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 [ 106 ] 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- It is a settled point in natural law, that he who has made gation oi ^ promise to any one has conferred upon him a real risiht to ODscrvintr •*■ , , , "^ ^ treaties. 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 tlio 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 Avitii 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 Pacis, lib. ii. cap. xv. § 8, et seq. 290 AND OTHER PUBLIC TREATIES. 196 ductors, ouf^lit inviolably to observe their promises and their book ii. treaties. This great truth, though too often neglected in c hap, xir. practice, is generally acknowledged by all nations :* the re- proach of perfidy is esteemed by sovereigns a most atrocious affront ; yet he Avho 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 liis 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 § i64. 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 ^ ^^^^^y }^ right of the party with whom we have contracted ; and this ^^^^^i^^ is an act of injustice against him. A sovereign already bound by a treaty cannot enter into § ic5. Trca- others contrary to the first. The things respecting which ties cannot he has entered into engagements are no longer at his disposal. ^^ "^^^'® If it happens that a posterior treaty be found, in any parti- l^^oge'^^^ea- cular point, to clash with one of more ancient date, the new jy 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 Avith [ 197 ] respect to all the articles that do not clash with the prior treaty. * MohanuncJ warmly rocomincnd- treaties. — Ockley's History of the Sa- rd to his disciples the observance of racens, vol. i. 291 197 OF TEEATIES OP ALLIANCE, BOOK 11. There is nothing to prevent a sovereign from entering into CHAP. XII. 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 beconduded .^.^^-j^ q-^-^q nation 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, bound ourselves by a promise not v-iew. to grant the same advantages to any other nation. We may in the same manner promise to assist two different allies with troops, if Ave 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- g]}-y jg entitled to a preference : for, the engagement was pure entitled lo 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- 'between two allies. We ouo;ht even to refuse assistance to sist3.ricG in an uniust ^^^® *^^® wliose cause is unjust, Avhether 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 (§ IGl). No one can be validly engaged to support injustice. §169. Gc- Grotius divides treaties into two general classes, — first, neral dm- tliosc lohieh tum Oiler eljj OH tlthigs to tvhich the 2^ct'>'ties were ties. already hound hij the law of nature, — secondly, tliose by ivliich they enter into further engagements.* By the former 1. Those -^ve acquire a perfect right to things to Avhich we before had that relate ^^ ^^ imperfect rio-ht, so that we may thenceforward de- to tiling's 3.1- •/ A o ■' V ready due Hiaiid as our due what before we could only request as an by the law office of humanity. Such treaties became very necessary be- ef nature, twecn 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 order 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 • AND OTHER PUBLIC TREATIES. 198 make no addition to those duties that men owe to each other book ii. as brethren and as members of the human society : such are chap, xn. those treaties that permit commerce, passage, &c. If the assistance and oiBccs that are due by virtue of such § 170. Co'.- a treaty should on any occasion prove incompatible Avith the lision of duties a nation owes to herself, or with what the sovereign ^!"^*^ .^'''=^" owes to his own nation, the case is tacitly and necessarily V^^^^'^ ^"^ V *J UUtlCS WG 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 tliat ho 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 evil § 171. Trca- to an ally, to abstain, with respect to him, from all harm, ties in which oftence, and injury, are not necessary, and produce no new ^^^^ ^^^^^y right, since every individual already possesses a perfect natu- jl, """[^j. 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 witii 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 sec 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 §172. Trca- imposed on us by the law of nature^ are either equal or un- ^^^^ <^«"- equal. ccming 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 ^^i"'^' condition of the parties is equal. Such is, for example, a '^''■•"'''*''- z 2 '^93 198 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. We are also to place in the class of equal treaties those which stipulate that the allies shall consider themselves as embarked in a common cause, and shall act with all their strength. Notwithstanding a real inequality in their strength, they are nevertheless willing in this instance to consider it as equal. Equal treaties may be subdivided into as many species as there are of different transactions between sovereigns. Thus, they treat of the conditions of commerce, of their mutual defence, of associations in war, of reciprocally granting each other a passage, or refusing it to the enemies of their ally ; they engage not to build fortresses in certain places, &c. But it would be needless to enter into these particulars : generals are sufficient, and are easily applied to particular cases. § 173. Ob- Nations being no less obliged than individuals to pay a ligation of regard to cc^uity, they ought, as much as possible, to pre- preserving g^rye equality in their treaties. When, therefore, the parties treaties. ^^'6 able reciprocally to afford each other equal advantages, the law of nature requires that their treaties should be equal, unless there exist some particular reason for deviating from that equality, — such, for instance, as gratitude for a former benefit, — the hope of gaining the inviolable attachment of a nation, — some private motive, whicli 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 sec 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. JIow long shall Ave continue to see men in public characters take a pride in practices that 294 AND OTHER PUBLIC tllEAtlE?*. 199 would disgrace a private individual? The private rnan, iflve book n. is void of conscience, laughs also at the rules of morality and chap, xh . 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 respectabilit3\ When people speak of equal treaties, they have commonly § 174, Dif. in their minds a double idea of equality, viz. equality in the fcrence be- cngagements, and equality in the dignity of the contracting tween equal parties. It becomes therefore necessary to remove all ambi- ^'■*^^'''^^ j^" ■'. T c ^ ^ T--1 equal alli- guity ; and tor that purpose, we may make a distinction be- ances. tween equal treaties and equal alliances. Equal treaties are those in which there is an ecpialit}^ in the promises made, as we have above explained (§ 172); and equal alliajiccs, those in which equal treats with equal, making no difterence 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 Avith 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 arc those in which the allies do not reci- § 175. Un- procally promise to each other the same things, or things equal trea- equivalent ; and an alliance is unequal when it makes a differ- '^'^^ a"*^ "'i- ence in the dignity of the contracting parties. It is true, that ^^^^[ ^'*'' most commonly an unequal treaty will be at the same time an unequal alliance ; as great potentates are seldom accustomed to give or to promise more than is given or promised to them, unless such concessions be fidly compensated in the article of lionour 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 inequaliti/ prevails on the side of the more con- siderable power, — the second comprehending treaties where the inequalitj/ is on the side of the inferior jyower. 295 200 OP TREATIES OF ALLIANCE, BOOK 11. Treaties of the former class, without attributing to the more CHAP. XII. 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, wishincr to eno-age a weaker state in his interest, oifers -'JJ- J her advantageous conditions, — promises her gratuitous suc- cours, or greater than he stipulates 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 tlie 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 Avitli the house of Austria, and the cardinal de Richelieu wished to humble that formi- dable power, he, like an able minister, concluded a treaty Avith 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 Avould 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 partic)^ serves still further to preserve the equilibriuni. 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. 296 AND OTHER PUBLIC TREATIES. 201 Treaties in ivhich the inequality prevails on the side of the b'>ok n. inferior power — that is to say, those which impose on the '^"'^''- ^'■'- ■weaker party more extensive obligations or greater burdens, or bind him down to oppressive or disagreeable conditions, — these une(iual 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 couciueror, or dictated by necessity, [ £02 ] Avhich 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 Aveakcr 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 Avill. 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 Avith 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 lloman conquerors, — to keep up only a certain number of troops, kc. These unequal alliances are subdivided into two kinds ; the}'^ cither 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 anolher'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 alli- 38 297 202 OF TREATIES OF ALLIANCE, BOOK II. ance, with diminution of sovereignty ; for he deprives him- CHAP. XII. ggif of one of the most important branches of the sovereign power, or renders the exertion of it dependent on another's will. The Carthaginians having, in the treaty that 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 an alliance jjower, she may lawfully renounce her former treaties, if the nution"of" V^^'^J ^"^^^^ whom she is 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 ^j^.^j; ly-^^^ Concluded them. This is a necessity that cannot be r^^or^'^ -| imputed to her as a crime : and since she would have a right L "^ '~* 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 maintainino; her di^nitv, and presei'vina; her inde- avoid as . o ./ ? i ^ o ^ 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 alii- j^rly 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 suggest to the Contrary, we must either pronounce sovereigns with^resoect ^*^ ^^ absolutely emancipated from all subjection to the law to unequal of nature, or agree that it is not lawful for them, Avithout 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 Avill 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 monarcli 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 298 ances. AND OTHER PUBLIC TREATIES. 203 an affection for a power whose superiority over them is dis- book n. played only by the conferring of favours : they cling to such c hap, xh. 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 poAverful, and not alliances to refuse him such honours and respect as are flattering to ^^"'^ .1:^ the person who receives them, Avithout degrading him by jg ^^ ^^ie 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 pow- of assistance from the more powerful state, unaccompanied p^^*-y- 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 M'ars. 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 licr 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. Bat there are cases where the inequality of treaties and § ISO. How alliances, dictated by some particular reasons, is not contrary i»pquality to etpiity, nor, consequently, to the law of nature. Such, in °nj'^i]|^nl general, are all tiiose cases in which the duties that a nation ces mav 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 'o ^^^ '^^ instance, a weak state attempts, without necessity, to erect a °' "=i'"''^- 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 Avith his desire, he may force her com- 299 204 OF TREATIES OF ALLIAXCE, BOOK II. pliance, by threatening to block up the roads and avenues of CHAP. XII. 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- of an unequal treaty, or even an unequal alliance, by way posed by ^j^ penalty, in order to punish an unjust aggressor, and ren- wsLV 01 pun- .. .... oo ^ ? ishmentf ^®^" ^™ 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 \a^vs 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 u^]^^. ^t m^i'ny different kinds of unequal alliances. But we shall not eJ-ewhere*^ repeat here Avhat we have said respecting them in Book I. Chap. I. and XVI. § 183. Per- By another general division of treaties or alliances, they sonai and ^^^ 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. Meal 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 AND OTHER PUBLIC TREATIES. 205 pi-ecaution, the very subject of the treaty, or the expressions book n. in which it is couched, may furnish a clue to discover whether chap, xn. 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 § is4, a personal one from the bare circumstance of its naming the Xaming the contracting sovereigns : for, the name of the reigning sove- conuactin!; reign is often inserted with the sole view of showing with ['jj^J |^^^'", whom the treaty has been concluded, without meaning thereby joes not 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'"^ vr^-^ treaty, it is the state herself that contracts ; and her engage- j-cal. ments do not depend on the lives of those who were only the r 206 1 instruments in forming them : the members of the people, or of the governing body, change and svicceed 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 tlie 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 § 1S6 monarch, is a treaty of the state ; it is oblin-atory on the '^'^eatics whole state, on the entire nation which the kino- represents, J""^"^." 11 1-11 • T 1 ""*' lyings or and whose power and riglits 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 Avhethcr 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 thinkinjr amonji" sovereijins is no less * Digest, lib. ii. tit. xiv. de Pactis, leg. vii. § 8. 2 A 301 206 OF TKEATIES OF ALLIANCE, BOOK II. variable ; and there are certain things of which it is proper CHAP. XII. ii^Q^i QQ^oi^ prince should be at liberty to dispose according to his own system. There are others that are freely granted to one king, and would not be allowed to his successor. It therefore becomes necessary to consider the terms of the treaty, or the matter which forms the subject of it, in order to discover the intentions of the contracting powers. petua'l trea- 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^-^ ^j^g Same manner, when a king declares in the treaty § 188. Trea- ^]jat it is made "for himself and his successors," it is mani- les ma e ^^^^ ^-^^^ ^l^j^ -^ ^ ^^^1 treaty. ■ It attaches to the state, and tor the King .. tit ii-i •ir> and his IS intended to last as long as the kingdom itselt. 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 . ^, „ ^ . • 1 f 1 the king- itseli. buch treaty is tliereiore 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 Avc Can clearly prove either the personality or the tion ought j-eaUty of a treaty, it ought to be presumed a real treaty if it cd in doubt- chiefly consists of 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 n. intention to make a real treaty, as being the more advan- ^"^^- ^"- tageous to their respective kingdoms: and if we are mistaken in this presumption, Ave 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 we may add, that, if either the one or the other must sacrifice a part of his right, it will be a less grievous violation of the laws of equity that the lat- [ 208 ] ter should forego an expected advantage, than that the former should sufier a positive loss and detriment. This is the fa- mous distinction de lucro eaptando, 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, ka. — or they treat only for the time of their own reign, — for an affair peculiar to themselves, — for their families, kc. Since public treaties, even those of a personal nature, con-§ i9i. The eluded by a king, or by any other sovereign who is invested obligations with sufficient power, are treaties of state, and oblisjatory on*"'^"^'^^^ the whole nation (§ 18G), real treaties, which were intended ° * De Jure Belli et Pads, lib. ii. cap. xvi. § 1 G. J03 208 OP TREATIES OE ALLIANCE, BOOK 11. to subsist independently of tlie person wlio lias concluded CHAP. XII. them, are undoubtedly binding on his successors ; and the from a real obligation ■which such treaties impose on the state passes treaty pass successivelj to all her rulers as soon as they assume the pub- tj) the sue- jjg authority. The case is the same with respect to the rights acquired by those treaties : they are acquired for the state, and successively pass to her conductors. It is at present a pretty general custom for the successor to confirm or rcnev/ 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. §192. Trea- The treaties that have no relation to the performance of *^r'\^^f°™' reiterated acts, but merely relate to transient and single acts for^airand^^ which are concluded at once, — those treaties (unless indeed perfected, it bc 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 perforraancd 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. XIL § 1.53, of this book, t Law of Nature and Nations, book 8, c. 9, § 8. 304 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, c"ap. xn. and proves it, he is not to be accused of maintaining that the convention is not obligatory on him, and refusing to fulfil it ; — he only shows that such convention has not taken place : for a defective and invalid deed is a nullity, and to be consi- dered as having never existed. The third rule given by Puffendorf is no less useless with §193. Trea- respect to this question. It is, "that if, after the other ally ^"^-^ '"'''^.^ly has already executed something to which he was bound byej^j^^ije 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 Avith 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 ho 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 ho 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, wouhl 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 2 A 3 305 210 OF TREATIES OF ALLIANCE, BOOK n. in return : and, vfh.cn 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 Avas one of thos€ 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 Avho 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- -^yhatsoever, one of them ceases to reiorn, the alliance ex- pires if one . /> 1 1 1 • T ^. • 1 of the con- pii'GS : tor they have contracted in quality oi sovereigns ; and tracting he who ccases to reign no longer exists as a sovereign, though powers he still lives as a man. ceases to Kings do not always treat solely and directly for their § 195 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. faj-g Qf ^^g 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. § 196. Alii- It is asked, whether such an alliance subsists with the king T'h ^°"" ^^^ ^^^^ royal family, when, by some revolution, they are de- th" defence P^ivcd of the crown. We have remarked above (§ 194), that of the king a personal alliance expires with the reign of him who con- and the tracted it : but that i.s to be understood of an alliance formed 306 AND OTHER PUBLIC TREATIES. 211 with tlie state, and restricted, in its duratiori, to the reign of book n. the contracting king. But the alliance of which we are now chap, xir. to treat, is of another nature. Although obligatory on the royal 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 dethroaed 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 eftbrts have proved ineffectual, it cannot be expected, by the dethroned prince, that he shall support an endless Avar 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 acknowleds-e King "William, though he had at first treated him as an usurper. 307 212 OF TREATIES OF ALLIANCE, ETC. BOOK II. 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 against every foreign violence, and even against his rebellious allied king 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 Avould 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 hiAvful 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. 303 OF THE DISSOLUTION AND RENEWAL OF TREATIES. 213 BOOK II. CHAP. XIII. CHAP. XIII. OF THE DISSOLUTION AND RENEWAL OF TREATIES. (125) iAN alliance is ^lissolvcd at the expiration of the term for § 198. Ex- which it had been concluded. This term is sometimes fixed, pfation of as, when an alliance is made for a certain number of years ; '' ^"V^^^" '. .. . . in- 11 niaue ior a sometnnes it is uncertam, as m personal alhances, whose dii- limited ration depends on the lives of the contracting powers. The tune. term is likewise uncertain, when two or more sovereigns form an alliance with a view to some particular object; as, for instance, that of expelling a horde of barbarous invaders from a neighbouring country, — of reinstating a sovereign on his throne, &c. The duration of such an alliance depends on the completion of the enterprise for which it was formed. Thus, in the last-mentioned instance, when the sovereign is restored, and so firmly seated on his throne as to be able to retain the undisturbed possession of it, the alliance, which Avas 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 eiFect, 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. Kc- by the common consent of the allies, — which consent may be "cwal of either expressly or tacitly made known. AVhen the treaty is ^"'''^^^"^''• expressly renewed, it is tlie 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, — Avhich is very different from a renewal, espe- cially as to the term of duration. For instance, England has [ 21-1 ] 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, 61. "5 to 630, and ii. Index, tit c. 2; and 1 Chittv's Com. Law, 38 Treaties. 309 214 OF THE DISSOLUTION AND RENEWAL OP TREATIES. BOOK II. paid : the ally receives it : thus the treaty is indeed tacitly CHAP. XIII. 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 Jf one of the allics fails in his engao-ements, the other may T° ^v" 1 - ^*^^^P6^ ^^'^ ^o fulfil them : — a perfect promise confers a right ted by one ^0 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 \q ^yjn sometimes find it more eligible to cancel the promises paities. Qj^ j^jg ^^^^ g-jg zho^ and to 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 one treaty ^^^ ^^^ ^^ those treaties does not directly discno;ao;e the in- U06S not ^ o o cancel an- j^red party 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 DISS01.UfiOi^ ANft RENEWAL OP TREATIES. 215 Other treaties by which they are united, — and may put his book ir. threats in execution if the other disregards them. For, if any caAP. xin. one wrests or withhokls 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- "'^'^ artic e sider those several articles as so many distinct treaties con- n^^y cancel eluded at the same time. They maintain, therefore, that, if the whole, either of the allies violates one article of the treaty, the other (12^) 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 Avliich pru- dence, moderation, the love of peace, and charity would com- monly prescribe to nations. Who Avill 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 Sii'lon v. Sutton, 1 Russ. & Britain, and capable of inheriting and Mjlnc Rep. 663, A. D. 1830, it was holding such lands, notwithstanding a held in the (l^ourt of Chancer)', that, subsequent war between the two coun- underthc 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 ofj. 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 Miistcr of the Rolls there such treaty into execution, American ci- said, "It is a reasonable construction, tizcns, who held lands in 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 dercd, 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. have agreed to some of them in consideration of the others, and by way of compensation. I would perhaps never have consented to this article, if my ally had not granted me 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 1 and rendering their alliances durable. (127) § 203. The In 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 dc- solved, if One of the allied nations is destroyed, — that is to struction o ^^^^ ^^^ ^^1^ -^^ ^^^q men Avho 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 ivhen 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 ct Pacis, lib. 1 Russ. & Mylne, 663, is an express ii. cap. XV. § 15. decision upon such a provision even by (127) The case of Sutton v. Sutton, implication. 312 OF THE DISSOLUTION AND RENEWAL OF TREATIES. 216 that province stood mortgaged to some English merchants, book h. In fact, his conquest extended no further than the acquisition chap, xih. 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. AUi- any treaty contrary to those by which she is actually bound ^'^ccs of a (§ 165), she cannot put herself under the protection of another ^^^^ ^ state, without reserving all her alliances and all her existing wards put 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 ouo;ht to do it in such a ^^'^^^^^ °^ manner, that the new treaty may involve no infringement of her pre-existing ones. We have seen (§ 176) what rights a [ 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 ease 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 : postquam de- ditionis, qiiam socictatis, Jidcs 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 il'ssohed hy third party should find himself interested in the preservation of the treaty, and should sufter by its dissolution, — yet, if he had no share in making such treaty, and no direct promise ha(J been made to him, those who have reciprocally made pro- • Lib. vi. cap. x. 40 2 B 313 mutual con- sent. 217 OF OTHER PUBLIC CONVENTIONS, ETC. BOOK ir. raises to each other, which eventually prove advantageous to CHAP. XIII. 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 ment, &c., when they are made between sovereigns, differ ^vereigns. f^o^^ 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 cfjually 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. 13ut there arc public conventions made by subordinate Those made pQ^y-g^-g^ j^ virtue either of an express mandate from the jj^jppQ^g^g^ 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 poivers 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. Wbcn, 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 314 ■ ■ 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, xiv. proxy : this is the case Ave 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 ^o"'^'^'^^^ • bV 3. DUDllC 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 ^^^ ^'^^^" 1 • 1 .1 • 1 T ,1 reign, or 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- powei-s. 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 usuall}'^ understood to imply an expre.>) As no nation is obliged to do any thing for another nation, § 237. Na- wliich that other is herself capable of doing, it naturally fol- ture of the lows that the guarantee is not bound to give his assistance °'^''^''*'*''^'' ^ 111 11' imposes. except where tlie 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. A Cres. 269 ; 2 Dowl. nations in this respect precisely aj^plies & II. 22 ; 5 Bing. 4S5. — C. to guaranties given by p'""""'* iudi- 333 236 OF SECURITIES GIVEX FOR BOOK 11. of the treaty, to weigh the pretensions of him -who cLaims his CHAP. XVI. guaranty ; and, if he finds them ill founded, he may refuse to support them, without failing in his engagements. g 238. The It is no Icss evident that the guaranty cannot impair the guaranty r}g}its of any ono who is not a party to the treaty. If, there- pair the ^ove, 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 jg ^he objcct of it; and, in case of doubt, this ought always guaranty. ^^ -^^ presumcd, sinco 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, Avhatevcr we have said of treaties in general is equally applicable to a treaty of guaranty. I 240. Trea- "When there is question of things which another may do or ties with gjyg g^g ^^^^^ ^^ l^g ^j.^Q promises, as, for instance, the payment of a sum of money, it is safer to demand a security than a guaranty : for the surety is bound to make good the promise in default of the principal, — whereas the guarantee is only obliged to use his best endeavours to obtain a performance of the promise from him who has made it. ? 241. A nation may put some of her possessions into the hands Pawns, se- ^f another, for the security of her promises, debts, or engage- mort'^T^cT*^ ^•^®'^*^' ^^ ^^^^ *^^"^ deposits movable property, she gives '° ' 2^^cdges. 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 334 THE OBSERVANCE OF TREATIES. 237 tloed which assigns them as security for a debt, they serve as book u. a mortgage : if they are actually put into the hands of the ere- '^"^'•- ^^^- ditor, or of him with whom the affair has been transacted, he holds them as })le;nification which common usiio-e 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 toe have vcrij 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 presumjition 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. * Ilistory of Queen Elizabeth. 347 284 OF THE INTERPRETATION OF TREATIES. BOOK 11. CHAP. XVIT § 272. In- terpretation of ancient treaties. § 273. Of quibbles on words. The usage we here speak of is that of the time when the treaty, or the deed, of whatever kind, was drawn up and con- cluded. Languages incessantly var^'-, and the signification and force of Avords change with time. When, therefore, an 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, woukV furnish but a vain theory, equally useless and destitute of proof. Words are only designed to express the thoughts : thus, the true signification of an expression in common use is the idea which custom has afiixed 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,! only serve to aggravate the guilt of the perfidiou wretch who has recourse to them. To spare the head of a? one, and to shed no blood, are expressions which, according common custom, and especially on such an occasion, mau- festly imply to spare the lives of the parties. All these pitiful subtilties are overthrown by this unerring rule : Whe7i we evidently see what is the sense that agrees with the intention of the contracti7ig 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. Is it necessary, in an enlightened age, to say that mental reservations cannot be admitted in treaties ? This is mani- fest, since, by the very nature of the treaty, the parties are g 274. A rule on this subject. g 275. Men. tal reserva- tions. * See Puffendorf's Law of Nature thing of the perfidy which others and Nations, book v. chap. xii. ^ 3. attribute to him. La Croix, in his Hist, of Timurbec, -(- 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, xxsii. 4000 Armenian horsemen, but says no- 348 OP THE INTERPKETATION OF TREATIES. 249 bound to express themselves in such manner that they may book n. mutually understand eacli other (§ 271). There is scarcely 2HI^^2ii- 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 tlie 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 ^^^^.J^ "^"^^ knowledge of the art or science to which the terms belong. I r 250 1 £fij 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 wdio 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 ^'|°|jg*^'),f °° agreeable to the context ; for a regular definition describes a ^igo-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, wdien 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 Coesar ? 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 g 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 '^-"^pr^ssions. 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 sivord into a country,'^ are expressions of this sort; and there * The French expression, "oudir unc of a weh ;" — "fire and sword," literallj', tnuiie," which is rendered "hatch a "fire and steel," (or iron). }'lot," literally signifies, " to lay the warp 2 E 349 250 OF THE INTEKPRETATION OF TREATIES. BOOK II. scarcely can occur an instance where it would not be absurd CHAP. xviT. ^^ ^^^Q them in their direct and 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, pj^j-g^ggg -^vi^icJi are susccptible 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 r 251 1 ^^ 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. § 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 : zve ought these two aUvai/s to affix such meanings to the expressions as is most cases. 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 Avho 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, Avhenevcr a man can and ought to make known his intention, we assume for true against hnn 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 dag, 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 Avith 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 '^"'^p- ^vn. it : — in a convention which stipulates that tlie enemy shall lay down their steel, it evidently means thei7- 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 ] Jiim, 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 exp)-cssions which are susceptible of dif- ? 281. Not ferent significations occurs more than once in the same jjiece, necessary to we cannot make it a rule to take it everywhere in the same ^i^q^j^q'^ signification. For, we must, conformably to the preceding sense every- rule, take such expression, in each article, according as the where in subject requires, — pro substrata materia, as the masters of the*^^ ^^™® art say. The word day, for instance, has two significations, 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^ 2S2. We rejected ; or, in other words, we should not give to any piece °"siit to re- a meaning from which any absurd consequences would follow, .''^[* ^^^^^ but must interpret it in such a manner as to avoid absurdity, tion that As it is not to be presumed that any one means Avliat is ab- leads to an surd, it cannot be supposed that the person speaking intended absurdity, 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. AVe 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 ri<:ht 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. g 7. 351 252 or THE INTERPRETATION OF TREATIES. BOOK n. Why did they not also abstain from dressing, walking, and oiAP . xvir. gr^tii^g? These also are ^^icorJcs," 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, Avho 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 or [ 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 Avas 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 ex})res- sions of the law or of the treaty are susceptible of two diffei-- 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 renders the ^^^^ ^^^ rcsult of their proceedings should prove a mere nul- lity. The interjyretatmi, therefore, tvliich would render a OF THE INTERPRETATION OF TREATIES. 253 treaty null and inefficient, cannot he admitted. We may con- book n. aider this rule as a branch of the preceding ; for, it is a kind £^1^iL of absurdity to suppose that the very terms of a deed should ^'^"^ °^ ^^' reduce it to mean nothing. It ought to he interpreted in such a manner as that it may have its effect, and not prove vain and nugator// : 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 Boeotians should evidently have been construed to mean all that was compi'ised 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 ? 2S4. Ob- manner has spoken elsewhere more clearly on the same sub-^^"'"*'.^^- . ject, he is the best interpreter of his own words. We ^'^^^^^^[errrted'"' to interpret his obscure or equivocal expressions in such a by others manner that they may agree with those clear and unequivocal more clear terms which he has elseivhere used, either in the same deed, '" ^^^ ^"™® or on some other similar occasion. In fact, while we have no ""' ^^' 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 do not give any indication that they have changed their minds with respect to the support of the auxi- * Lib. iv. cap. xcviii. 45 2 K 2 353 254 OF THE INTERPRETATION OF TREATIES. BOOK 11. liary troops, we are not to presume any such change ; and CHAP. XVII. j-|j^,gg fifteen 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 ofiiensive war. ? 285. In- It frequently happens, that, with a view to conciseness, terpretation people cxprcss imperfectly, and with some degree of obscu- the'connec- ^'^^J' t^^i^^gs which they suppose to be sufiiciently elucidated tion of the by the preceding matter, or which they intend to explain in discourse, tho scqucl : 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 lohich 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 persjJectd, unci aliqud particuld ejus projjositd, judicare, vel respondere.'" ? 286. In- The very connection and relation of the things in ques- terpretation tion help also to discovcr and establish the true sense of a drawn from treaty, or of any other piece. The interpretation ought to \o '"'"?*'.*'' he made in such a mvinner, that all the jyarts may appear lation of coiisonant to each other, — that ivhat follows may agree with the things ivhat preceded, — unless it evidently appear, that, by the subse- tbemsoives. qng^if clauscs, 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 CHAP. XVII. leave the nature of the succours to the choice of the party book wlio may stand in need of them. If, therefore, the ally who is attacked calls upon the others for cavalry, they M'ill give iiim, 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 iu 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 ougiit 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- tics 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 [ ^bQ ] appeal's 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, ^ 287. in. the motive which led to the making of it, and the object in terpreuition contemplation at the time, — is the most certain clue to lead fj^""<^<^^' •^'" us to the discovery of its true meaning ; and great attention orthTdeed. 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 tvill of the person speakiny, 7ce ouyht to interpret and apply his words in a matiner 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 365 256 OF THE INTEKPRETATION OF TREATIES. BOOK II. and uncertain conjectures, and to suppose reasons and views CHAP. xYii. -^yjigpg 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, that 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 Avhat 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 Ave must build our interpretation, and not upon those which the author has not expressed : — we assume, as true, against him, Avhat he has sufficiently declared (§ 266). We ought to be the more circumspect in this kind of inter- pretation, as it frequently happens that several motives con- cur to determine the will of the party who speaks in a law or a promise. Perhaps the combined influence of all those to determine motivcs was ncccssary in order to determine his will ; — per- the will. j^j^pg ga^ch one of them, taken individually, would have been [ 2/37 ] sufficient to produce that effect. In the former case, if tue arc perfectly ce^'tain that it loas only in co7isideration of several co7icurrent reasons and motives that the legislature or the con- tracting ijarties consented to the laiv or the contract, the inter- pretation and application ought to he made in a manner agreeable to all those concurrent reasons, and none of them must be overlooked. But in the latter case, wheji it is evi- dent that each of the reasons winch have concurred in dete7'- mining the will ivas sufficient to produce that effect, so that the author of the piece in question tvould, by each of the rea- sons separately considered, have been induced to form the sarne detei'vnination ivhich he has formed upon all the reasons taken in the aggregate, his tvords must he 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 ^ 28S. Where many rea- sons have concurred OF THE INTERPRETATION OF TREATIES. L*57 relate only to such foreigners as unite those two characters, book n. of Protestants and artisans. But if it is evident that this chap, x vh. prince wants to people his country, and tliat, although he Avould 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 *^°"^H'"'^'^^ express whatever has produced that act, — whatever has de- reason"'or 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 stifficietit reason no longer exists : and in those cases Avhere we say that many motives, many reasons, have concurred to determine the will, yet so as that each in particular would liave 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- Avhich occur in the piec;, but also to exterd or restrict its 'erprstation several provisions independently ot the expressions, and m jj^g ^^.^^q. conformity to the intention and views of the legislature or the of the aet. contracting parties, rather than to their words. Eor, accord- [ 258 ] ing to the remark of Cicero,* the language, invented to explain the will, ought not to hinder its effect, WJien the sufficient and only reason of a provision, either in a law or a promise, is perfectly certain and ivell understood, ice extend that jn-ovisioii 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 oughi 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 Avails, it was agreed not to enclose a certain town Avith walls, • Quid ? verbis satis hoc cautuin mur. Quia noii potest, verba reperta erat? Minime. Quaj res igitur valuiti sunt, non quns impctlircnt, sed quae in- Voluntas : qua; si, tacitis nobis, iiitcl- dicarent voluntatcm. Cicer. Orat pro Hgi posset, verbis oninino non utere- Ctecina. 357 258 OF THE INTERPRETATION OF TREATIES. BOOK II. it would not be allowable to fortify it with fosses and ram- cnAP. XVII. pj^i-tSj 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 Avould be useless and ridiculous to allege any by-views which the person might have secretly entertained in his own mind. ^ 291. The rule just laid down serves also to defeat the pretexts Frauds and pitiful evasions of those who endeavour to elude laws or tending to trgaties. Good-faith adheres to the intention : fraud insists on the 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 llhodians. 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 Avhich siie laughed at the Rhodians, and sent them a message, intimating that it was very unrea- 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.| 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 wlio is guilty of it. Ilcstriative intciyretation, which is the reverse of extensive * Puffondorf, lib. v. cap. xii. § 18. He f Puffend. ibid. Herodotus, lib. vi. quotes Ammianus Marccllinus, lib. xxii. Five drachma; amounted to little more cap. xvi. than three shillings sterling. J Tacit. Auual. lib. v. 9. 358 elude laws or promises OF THE INTERPRETATION OF TREATIES. 259 interpretation, is founded on the same principle. As we ex- book h. tend a clause to those cases, which, though not comprised chap, xyii. within the meaning of the terms, are nevertheless comprised §092. Re- in the intention of tliat clause, and included in the reasons strktive in- that produced it, — in like manner, wc restrict a law or a pro- terpretaUon 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 oecurs, to which the well knoivn reason of a laio or promise is utterly inapplicable, that case ought to be excepted, although, if we ivere barely to con- sider the meaning of the terms, it should seem to fall within the purvieiv of the law or prornise. 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 sufler 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, Avhen, 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 "^•'••"order his house to one, and to another his garden, the only entrance f°"\''^" "'^' 1 • 1 • 1 1 1 1 T Til 1 1 "Iff into ab- nito which IS through the house. It would be absurd to sup- gurjitieg or 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 [ 200 ] 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 • Jjib. iv. Declam. xxvii. 359 260 OP THE INTERPRETATION OF TREATIES. BOOK II. prejudicial to any one to interpret a law or a promise accord- OHAP. xYii. jjjg ^Q ^^Q rigour of the terms, a restrictive interpretation § 294. Or is then also used, and we except the case in question, agree- what IS too ably to the intention of the legislature, or of him who made burden^" the promise : for the legislature intends only what is just some. ^^^ 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 1T45 ; 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 inliis engagements. § 295. How We have said above (§ 280), that we should take the ex- it ought to pressions in the sense that ao;rees with the subject or the restrict the -w . . . . • , siKnificiition ^^^^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 he 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 enfeolfraent 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 arc reckoned among the male descendants of the first possessor. g 296. How The following question has been proposed and debated : a change " Whether promises include a tacit condition of the state of iiTthe" tate ^^^^^"^ Continuing the same, — or whether a change happen- of things ing in the state of aifairs can create an exception to the pro- may form mise, and even render it void ?" The principle derived from an excop- i\iq reason of the promise must solve the question. Jf it be certain and manifest that the consideration of the present state of tilings was one of the reasons which occasioned the promise, — that the promise was made in consideration or in 3fi0 OP THE INTERPRETATION OF TREATIES. 261 consequence of that state of things, — it depends on the pre- book ii. servation of thini/s in the same state. This is evident, since chaf. 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 Avithout 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 neighboarinj; 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 formiluble, — 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 1GG8. 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 thretit- ened to inundate and overwhelm all before it. J>ut 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 Nvhich the promise was made, is essential to the promise : and it is onl}' by a change in that state, that the eflVct 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, convcntio omnis intdUgitur 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 45 2 F 101 262 OF THE INTERPRETATION OF TREATIES. BOOK II. of affairs can only take place in that situation. We ought to c HAP.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 in ^^^^ could not have thouglit of, ive should rather be guided by fascs. ^'^'^ intention than by his ivords, and interpret the instrument as he himself ivould 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 eftect 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- Whe7i the things which constitute the reason of a law or tioiis arising convention are considered, 7iot as actually existing, but simply '''^'"/.'.^ as possible, — or, in other words, tvhen the fear of an event is and not the ^he reason oj a law or a promise, no other cases can be ex- existcnceof ccptcd from it than those in ivldch it can be proved to demon- a thmg. 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 tlie 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 transgi'essed 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 pressions * Digest, lib. xxvi. tit. iii. Do Confirm. Tutor, leg. 10. 3G2 OF TJIH 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 ch^p. xvii expressions, words, or entire phrases, susceptible of a more or capable of less extensive signification. Many a word is equally appli- an extensive cable to the genus or the species: — the word fault implies^" ™''' intentional guilt or simple error : — several species of animals have but one name common to both sexes, as partridge, lark, sparrotv, &c. ; when we speak of Jiorses, merely Avith 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 : verhiun, in the Latin grammar, signifies only that part of speech called the w?Vj; but, in common use, it signifies any word in general. Frequently, also, the same phrase implies more things on one occasion, and fcAver 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 whoso 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 purj)ose. But it is to this head that the famous distinction, between §300. Of things of a, favourable and those of an odious nature, particu- things fa- larly belongs. Some writers have rejected the distinction,* ''^''^'^fu-^*'' 3L1 -• , r 1 1 T • ,« anil things doubtless lor want ot properly understanding it. Jn 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 provisions of a law or a convention are plain, clear, determi- nate, and attended with no doubt or dilHculty 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 II. cnAP. XVII. §301. What tends to the common ad- vantage,and to equality, is favour- able : the contrary is odious. this purpose, it is necessary to pay attention to the nature of the 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 ai.d 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 culled favou7'able. 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. It will not now be difficult to show, in general, what things HYQ favourable, and what are odious. In the first place, every tiling that tends to the common advantage in co7iventio7is, or that has a tendency to place the contracting parties on a foot- ing of equality, is favourable. The voice of equity, and the general rule of contracts, require that the conditions between 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 danirer in extending what is for the common advantao-e. 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 oneratc the inferior ally, are odious. Upon this principle, that we ouglic 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 p)stentis est causa,* — 364 * Quintilian, Instit. Orat. lib. vii. cap. iv. OF THE INTEIii'IlKTATION OF TREATIES. 2G4 tlie party who endeavours to avoid a loss has a better cause to book n. support than he inJio aims at obtaining an advantage. ^"'^'jJ'^'l'' All those things which, luithout proving too burdensome to §302. What any one in particular, are useful and salutary to human so- «s useful to ciety, are to be ranked in the class of favourable things : for a^"™*^" ^?" nation is already under a natural obligation with respect to "^^^^j'^g ."^ 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 oivn 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 tiling that contains a penalty, is odious. With re- §303.What- spect to the laws, it is universally agreed, that, in case of ever con- doubt, the iud";c ou;rht to incline to the merciful side, and *'^\"'' *. P^* , , , * . ^ ^ naltv is that it is indisputably better to suffer a guilty person to escape, odious. 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 ^^Oi. in the whole, or in part, and consequently, whatever introduces Whatever any change in things already agreed upon, is odious: fo^" jeed^void i<; men treat together with a view to their common benefit; and ojjous. if I enjoy any particular advantage acquired by a lawful con- tract, I must not 1)0 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 consecjuently 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 Avhich tends to render a deed void and ineffectual is con- tained in the deed itself, it is evident tliat such passages ought to be construed in the most limited sense, in tlie 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- 't"'^* ' ' ^ • 1 1 1- • 1 -^ 1 • 1 • r> 1 1 change the cisely, as he rehmpushes it on his part ; and, in case of doubt, prescntstate 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 2G5 OF THE INTERPRETATION OF TREATIES. BOOK II. which he has lost through his own neglect, than to strip the CHAP. XVII. j^g^ possessor of what lawfully belongs to him. In the inter- contrary is piretation, 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 favow'able Things of a or an ocUous nature, according to the point of view in which mixed na- ^hcy are considered. Whatever derogates from treaties, or '^T%cc 1 changes the state of things, is odious ; but if it is conducive L "^ -I to peace, it is, in 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 ; — tliat 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 arc the rules of interpretation, which flow from the principles we have just laid down. 366 OF THE INTERPRETATION OF TREATIES. 266 1. When the question relates to thinr/s favourable, ive ought book h. to give the terms the utmost latirude of which they are suscep- c"ap. xvii. tiblc according to the common usage of the language ; and if a § 307. Intcr- term has more than one signification, the most extensive mean- prctation of ing is to he preferred : for equity ought to be the rule of con- [j^^""^'^^''*' duct with all mankind wherever a perfect right is not exactly 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 inicnded 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 Coecina, 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. t 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 questio7is relating to favourable things, all terms of art are to be interjjreted in the fullest latitude of which they are susceptible, not only in common usage, but also as tech- nical terms, if the perso7i speaking understands the art to which those terms belong, or conducts himself by the advice of men ivho understand that art. 3. But tve ought not, from the single reason that a thing is favourable, to take the terms in an improp)er signification : this is not allowable, except ivhen 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 tj custom, unless we liave vcrv 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 tvould, 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 Capcina, cap. xxiii. t Digest, lib. xliii. tit. xvi. De Vi, et Vi Armata, iegg. 1 et 3. 367 267 OP THE INTERPRETATION OP TREATIES. BOOK 11. nevertheless, manifest equity or a great common advantage caw, xvii. y-Qq-fj^iy-Qg their restriction, we ought to adhere to the most li- mited sense which the proper signification ivill admit, even in an affair that appears favourable in its oivn nature, — because here also the thing is of a mixed kind, and ought, in this particuhir 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. § .'50S. In- Since odious things are those whose restriction tends more terpretation certainly to equity than their extension, and since we ought thinT"^ to pursue that line which is most conformable to equity, when r 268 1 ^^^® ^^'^^^ ^^ ^^® legislature or of the contracting parties is not exactly determined and precisely known, — tve should, zvhen there is question of odious things, interpret the terms in the most limited sense : tve 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, ivhich it ivould involve: for we are to fiivour 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 ofters 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 OAvn 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, Avithout 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, l)y the treaty of Utrecht, did not extend beyond the narrowest limits of that province. 3G8 OF THE INTERPRETATION OF TREATIES. 268 In point of penalties, in particular, when they are really book u. odious, we ought not only to restrict the terms of the law, or ch^p- x^"- 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 Avould 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 g 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 the}' give us just case for hostilities ; and Avhen a clause is just and reasonable, it does not become odious from the single circumstance that it mat/ 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. 4" 369 269 OF THE INTERPRETATION OF TREATIES. BOOK ir. ti'eaty, attack Saguntum, if they had lawful grounds for such CHAP. XVII. ^^ attack, or (in virtue of the voluntary law of nations) even apparent or specious gi'ounds (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 ^milianus, 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, w'ithout 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 " liherty" promised to the Carthaginians, though narrowly circumscribed by the existing state of aifairs, 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, a 310- How Liberal promises, benefactions, and rewards naturally come we ought to under the class of favourable things, and receive an extensive in- interpret tcrprctation, unless they prove onerous or unreasonably charge- deeds of ^-^^ ^Q ^^^ benefactor, or that other circumstances evidently raHty.' ' 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 *- AuTow/jof Appian. do Bello Punico. 370 OF THE INTERPRETATION 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 ^"*''- ^^"- utmost extent of the terms : we ought therefore, in such case, to confine ourselves to the most limited signification Avhich the words are capable of receiving, and thus reduce the bene- faction Avithin 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 majest}^ 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 Avhat the author probably had in his mind. [ 271 ] Let us conclude this subject of interpretation with what^sii. Coi- relates to the collision or opposition of laws or treaties. We Vision ofiaws do not here speak of the collision of a treaty with the law of °'" t*"^^^'^"- nature : the latter is unquestionably paramount, as we have proved elsewhere (§§ 160, 161, 170, and 293). There is a collision or oj^position 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, wc should observe the following rules : 1. In all cases ivhere ivhat is hardy permitted is found in- 1 r,i2. First compatible with tvhat is positively prescribed, the latter claims ^^^^<^ '^ ''"'^e'? a preference : for the mere permission imposes no obligation ^^ <^""''''^'"- 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- s' Such is the decision of the Roman for it : " quod a divina ejus indulgentia law. — Javolenus says: "Eoneficium profieiscatur." — Digest, lib. i. tit. iv. Je imporatoris quam plenissimo interpre- Constit. Princ. leg. 3. lari debemus;" and be gives this reason 371 271 OF THE INTERPRETATION OF TREATIES. BOOK XI. ticular instance, where we cannot take advantage of the per- CHAP. xYii. jj^igsion without violating a positive dutj. f 313. 2d 2. In the same manner, the law or treaty which permits, ^^^^- ought to give ivay to the law or treaty which foi'hids : for the prohibition must be obeyed ; and Avhat was, in its own nature, or in general, permitted, must not be attempted Avhen it can- not be done without contravening a prohibition : the permis- sion, in that case, ceases to be available. ^ 314. 3d 3. All circumstances being otherwise equal, the latu or the Rule. treaty which ordains, gives way to the laio or the treaty ivhich forbids. I say, "all circumstances being otherwise equal;" for many other reasons may occur, which will authorize the exception being made to the prohibitory laAV 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 Avithout 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 cai'ry 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 Avitli which I am charfrcd ouo;ht to form an exception. As to what relates to treaties, we are not obliged to ac- complish Avhat a treaty prescribes, any farther than we have "'■■■ The prohibitory law creates, in that vetat, quasi exceptiono quadam, cor- particular instance, an exception to the rigore yidctur illam qua3 jubot." — Ci- injunelive law. " Deindo utra lex cero, de Invcntione, lib. ii. 145. jubeat, utra vetet. Nam scepo ca qua; 372 OF THE INTERPRETATION OF TREATIES. 272 the power. Now, wc have not a power to do what another book n. treaty forbids: wherefore, in case of collision, an exception ^^''" "''^'"' 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 eftect directly or indirectly. 4. The dates of laws or treaties furnish new reasons for ? 3i5. 4th establishing the exception in cases of collision. If the coZ-^''"^*^- lision haiypen heUveen tivo offirmative lazvs, or tivo 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 bettveen two treaties made with two different poicers, 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 tiiat 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 laivs or two conventions, we ought {all other cir-^ 316. iih cumstances being equal) to prefer the one lohich is less general, i^uie. and ivhich approaches nearer to the point in question : be- cause special matter admits of fewer exceptions than that [ -'''3 ] which is general ; it is enjoined with greater j^recision, 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 u'hat ^ 317. 6th 7nag be done at another time. For this is the mode to recon- Rule, cile every thing, and fulfd 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 tvhich is g sis. 7th the more considerable, the more praisewortlig, and p)roductive ^uie. of the greater utilitg, is entitled to the preference. This rule has no need of proof. But as it relates to duties that are * Jus Gent. lib. v. cap. xii. ? 23. 2 G " 373 273 OF THE INTERPIIETATION OF TREATIES. BOOK II. equally in our power, and, as it were, at our option, we should '^"'^IUIIIIl carefully 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 ayc 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 wore not reduced to the same extremity, this would be the case to which the foregoing rule should be applied. _ As to Avhat 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. §319. 8th 8. If we cannot acquit ourselves at the same time of two l^ul®- things promised to the same jjerson, it rests with him to choose tvhich of the two we are to perform; for he may dispense with the other on this particular occasion; in whicli 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 iw.- portant one is his choice ; and tve should of course give that the preference. And, in case of doubt, we should perform the one to which we arc 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 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 oatli adds a * " Primiim igitur leges oportot con- diite, aut si plurcs, aut quntquot erunt, tendcro, con.sidcrando utra lex ad conservari noii possint quia discrcpent majorcs, hoc est, ad utiliorcs, ad ho- inter se, ca maxiino couservanda puto- ncstiores, ac magis ncccssarias ros per- tur, qiise ad maxiiiia.s res pertinere vido- tineat. Ex quo conficitur ut, si leges atur." Cicero, ubi .supra. 374 Rule. OF THE MODE OF TERMINATING DISPUTES. 274 new force to the obligation. But as it makes no change in book ii. the nature of treaties (§§ 221, &c.), it cannot, for instance, ch^'^- ^y' . ' . - 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 m?32i. loth other resjyects equal, what is enjoined under a fenalty claims ^"^®- a 'preference over that which is not enforced by one, — and what is enjoined under a greater penalty, over that ivhich 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. Go- bined together, and the interpretation be made in such manner ^erai re- as to accord with them all, so far as they are applicable to ™"'''^ "" ^j^® • injinncr ot the case. When these rules appear to clash, they reciprocally observingal) counterbalance and limit each other, according to their strength tho preced- and importance, and according as they more particularly be- i"S rules. long to the case in question. CHAP. XVIII. OF THE MODE OF TERMINATING DISPUTES BETWEEN NATIONS. chaIj x^'"'; THE disputes that arise between nations or their rulers, g 323. Ge- originate either from contested rights or from injuries received, nerai direc- A nation ought to preserve the rights v.diich belong to her ; *'°" "" *^"* and the care of her own safety and glory forbids her to sub- *" '^'''^ ' mit to injuries. But in fulfilling the duty which she owes to herself, she must not forget her duties to others. These tAVO [ 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 ^'■^^y °*- justice to all others with respect to their pretensions, and to!^"'" 'f remove all their just subjects of complaint. She is therefore gi've^satis- 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 specting tho damage that she herself may have caused, or any injury she^'"^'*^"™". may have done, — to give adequate satisfaction for such inju- an'o'thor!' ries as cannot be repaired, and reasonable security against any injury which she has given cause to apprehend. These arc so many maxims evidently dictated by that justice which * This is also the reason which Cicero ca [!cx] qux diligentissiuie sancta est' gives : " Nam maxiuie 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 ^. g^^-^^ 'H: to observe. § 325. How Every one is at liberty to recede from his right, to relin- nations may quig^ ^ just subjoct of complaint, and to forget an injury. theh^'riohts *^® ruler of a nation is not, in this respect, so free as a and jii.st 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 dar(id to offend her. In such a case, indeed, it will reflect glory on her to pardon those who acknowledge their faults, — r ^^76 "1 Parcere subjectis, et debellare superbos; The duty ^^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 jj^g q^ complete satisf\iction for it, is almost always imputed "t^t'^'^t " in"*^ *° weakness or cowardice, a.nd seldom fails long to subject sist on com- the injured party to further wrongs of a more atrocious natiu'e. pensation Why do wc oftcu SCO the very reverse of this conduct pursued for wrongs i,j those who fancy themselves possessed of souls so highly *ecte' '"^' 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 Avitli greater moderation. ? 320. If neither of the nations who are engaged in a dispute ^^Td b""" ^^'^^^^ proper to abandon her right or her pretensions, the the Lv'of contending parties are, by the law of nature, which recom- 'nature, for mcnds peace, concord, and charity, bound to try the gentlest 37G DISPUTES BETWEEN NATIONS. 27G methods of terminating their differences. These are — first, book h. an amicable accommodation. Let each party coolly and can- ^5^I^i_5ZIH- didly examine the subject of the dispute, and do justice to the theh-'dis'°° other ; or let him "whose right is too uncertain, voluntarily putcs. 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 ^^'^ accom- sake of preserving peace, — occasions, w^hich it is the part of "^^ ^*'^°°' prudence to discover. To renounce a right in this manner, is not abandoning or neglecting it. People are under no obligation to 3'ou for w'liat 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-™'^^' 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 affxirs 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 Avho 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 ^ 329. 4. are nevertheless desirous of preserving or restoring peace. Arbitration. they sometimes submit the decision of their disputes to arbi- 48 2g2 377 277 OF THE MODE OF TERMINATING BOOK II. trators chosen by common agreement. When once the con- CHAP. XVIII. ^ejj(jjjjg 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 ai-bitrators. 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 ai'bitrators 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 poAver ; 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. Tliey cannot say that it is mani- festly unjust, since it is pronoiniccd 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. -'o a sentence, they should prove, by incontestable facts, that it book h. 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 decision of every dispute which docs 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- ^ 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 diiferences 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,t 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 to resort or accede to these various tinciion to modes of accommodation, and which of them she ought to ^'■' ™'^'^'^ ^^' preter, it becomes necessary, in the nrst place, to distinguish ^j^.^^j j,,,,, 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- [ 270 ] tice ? Much less Avill 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, vale jmrtners 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. practioe, in case of differences, the more f la 1728. stipulation is usually considered by the S79 279 OF THE MODE OF TERMINATING BOOK II. -witliont endangering his own riglit, may induce his opponent CHAP, xviii. |.Q ijs|;g,;^ ^Q reason, — such as mediation and conferences. Na- ture gives us no right to have recourse to forcible means, excejjt where gentle and jjacific methods jji'ove ineitectual. 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, g 3.32. Of In the disputes that arise between sovereigns, it is more- essential over necessary to make a proper distinction between essential rights, and rights and rights of inferior importance: for, according to ^.v,,!^ r *^*^ the difference in the two cases, a different line of conduct is importance. t * . . ', , ,. . ^ , to be pursued. A nation is under many obligations oi duty towards herself, towards other nations, and towards the great society of mankind. We know that the duties Ave 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 Ave entertain of a prince or a nation Avho would refuse to give up the smallest advantage for the sake of procuring to the Avorld the inestimable blessings of peace ? Every poAver therefore OAves this respect to the happiness of human society, to show himself open to every mode of conciliation, in questions re- lating to interests Avhich 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 Avhat are the dangers, the evils, the calamities of Avar, and to consider that peace is Avell Avorth a small sacrifice. But if any one would rob a nation of one of her essential rights, or a right Avithout Avhich 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 Avill take counsel only from her OAvn cou- rage. She Avill not even attempt the mode of conferences on so odious a pretension ; she Avill, in such a quarrel, exert her utmost efforts, exhaust every resource, and gloriously lavish 380 DISPUTES BETWEEN NATIONS. 280 her blood to the last drop if necessary. To listen to the book h. smallest proposition, is putting every thing to the risk. On ^"-^^- ■^^'"- such an occasion she may truly say — Una salus nullam sperare salutcm : 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 Avho 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 arbiti-ation, the other t "?^^ °^ has only the last resource for the defence of himself and his course' 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. ^loubtM For, in a doubtful cause, we can only demand all the reason- ^^^^^' 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- ^'■'^^ ^^t^- stantly to be directed. To authorize her to have recourse to ?"* ^ttempt- • , • , 1 ,1 , .T IDS other arms, it is not always necessary that every conciliatory mea- measure^, sure be first expressly rejected : it is sufficient that she have every reason to believe that the enemy would not enter into those racasui'es 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 ci/es 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- shouKl not touch the liberty of those mittecl their difroroneos with the dukes countries, nor their alliance with the of Austria, in relation to the countries other cantons. Tschudi, p. 429, s to he ob- 298 or THE INSTRUMENTS OF WAR, ETC. BOOK in. CHAP. II. served in their enlist- ment. § 15. En- listing in foreign countries. gem or artifice, in order to induce them to engage in a con- tract, Tvhich like all others, should be founded on candour and good faith. As the right of levying soldiers belongs solely to the nation or the sovereign (§ 7), no person must attempt to enlist soldiers, in a foreign country, Avithout the permission of the sovereign ; and, even Avith that permission, none but volunteers are to be enlisted ; 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 [ 299 ] acted by order, such a proceeding in a foreign sovereign is justly considered as an injury, and as a sufficient cause for declarino; war against him, unless he makes suitable reparation. All soldiers, natives or foreigners, are to take an oath to serve faithfully, and not desert the service. This is no more than what they are already 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 arc far more guilty than the recruiters mentioned in the preceding section. Good order and subordination, so useful in all places, are 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, lie 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, 400 § 16. Obi gation of soldiers. § 17. Mil tary laws. OF THE INSTRUMENTS OF WAR, ETC. 299 &c. The laws and ordinances relative to these several par- book m. ticulars form the military code. ^'"'^''- "•.. Those regulations, whose particular tendency is to main- tain order among the troops, and to enable them to perform their military service Avith advantage to the state, constitute ? is. mlh- what is called military discipline. This is of the highest '*'!"y '*'^°^" importance. The Switzers were the first among the modern ^' '°^' 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. Machiavcl 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 lo3''al 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- Subor- cxpress declarations, contained either in the commissions he ^'^^'^^^ po^- confers or in the military code, — or is, by fair deduction, in- "^'^^ ^° ^'""' ferred from the nature of the functions assigned to each oflficer ; 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, kc. 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 [ 300 ] 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 Avitli 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 Livy. 51 2i2 401 300 OF THE INSTRUMENTS OF WAR, ETC. BOOK in. CHAP. II. g 20. How their pro- mises bind the sove- reigu. ^ 21. In what cases their pro- mises bind only them- selves. I 22. Their assumption of an au- thority which they do not pos- sess. [301] ? 23. IIow they bind their in- feriors. which may be deduced from the very nature of their employ- 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. Every promise made by any of the subordinate powers, by any commander within his department, in conformity to the terms of his commission and to the authority Avhich he natu- rally derives from his office and the functions intrusted to hia care, — 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 th6se capitulations have always been faithfully observed. But, if a subordinate power allows himself a greater lati- tude, and exceeds the authority annexed to his office, his promise becomes no more than a private engagement, or what is called sponsio, of which we have already treated. (Book II. Chap. XIV.) This was the case with the Roman consuls at the Furcse Caudinte. 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. If a subordinate power assumes an authority which he does not possess, and thus deceives the party treating with him, though an enemy, — he is naturally responsible for the damage caused by his deception, and bound to make reparation. I say " though an enemy :" for the faith of treaties is to be ob- served between enemies, as all men of principle agree, and as we shall prove in the sequel. The sovereign of that fraudu- 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. Promises made by a subordinate power are obligatory on those who are subject to his control, and bind them in every particular in which he is authorized and accustomed to com- mand their obedience : for, with respect to such particulars, he is vested with the sovereign authority, Avhich 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 Avar, — whoever con- g 24. War siders its terrible effects, its destructive and unhappy conse- "lever to be cinenccs, will readily agree that it should never be undertaken ""f"*^^*^" without the most cogent reasons. Humanity revolts against ^.^.^y cogent 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, docs 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 tliosc 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 ^^'^^^^y \^'^- •', , , , . , ji • • 1 T^ • sons, and equity would be their rule, or their judge, lorce is a ^^^jj^.^g ^^j, wretched and melancholy expedient against those Avho 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 wo 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 justificaton/ 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 hero applicable, post, B. 4, ch. 4, aro not. just causes for rescinding a § 44, 45, p. 449. treaty of peace, and which seem also 403 302 OF THE JUST CAUSES OF WAR. BOOK. m. The right of employing force, or making war, belongs to nations no farther than is necessary for their own defence. CHAP. III. g 26. What and for the maintenance of their rights (§ 3). Now, if any IS in gene- q^q attacks a nation, or violates her perfect rights, he does cause"'of war ^®^ ^^ "yury- 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 i^erfect 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. g 27. What The immediate consequence of the premises is, that if a na- war is un- tion takcs up arms when she has received no injury, nor is ^^^^ 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 and lawful object of every war, which is, to avenge or, 2>'^^' ^'"^^' 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. §§ 49 — 52). 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 off"cnsive, 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, qiioi defendi, repetique, et ulciscifas sit.* * Livy, lib. v. cap. 49. 404 OF THE JUST CAUSES OF WAR. ' 303 As the nation, or her ruler, ought, in every undertaking, r.ooK m not only to respect justice, but also to keep in view the ad- CHAP. III. vantage of the state, it is necessary that proper and com- ? 29- Loth meiidable motives should concur with the justificatory reasons. Justificatory , . . 11- rm reasons and to niduce a determination to embark in a war. Ihese I'ca- p^^^^gj. ^^g, sons 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 'J^'^a'^'ug ^ 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 ]?omans. The Koman 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 Avith 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 g 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 "?•*" J"^''' maintain the true welfare of the society or state jrives the FTf "' . , . .,•'.,,*' I'lit irom nation a right to take up arms against hira 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- [ 30-1 ] 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 ■105 304 OF THE JUST CAUSES OF WAR. BOOK III. that the supreme power is intrusted to him ; and it is with CHAP. III. ^-^^^ ^-g^y ^Ijjj^^ YiQ ought to exert it : that is the object pre- 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. 1 32. Pre- Let US, howcver, 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 o^ 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. § 33. War Whoever, Avithout justificatory reasons, undertakes a war undertaken merely from motives of advantage, acts without any right, merely for ^^^ j^jg ^^,^^ ^^ uniust. And he, who, having in reality iust ° ' 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. 2 34. Na- Nations that are always ready to take up arms on any pros- * Atrial, llistor. lib. iii. cap. 6. f Upoipatr^ts. 406 OF THE JUST CAUSES OF WAR, 305 pcct 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. III. without reasons or pretexts, and even witliout any other mo- 1'<^°^ ^^^ make war without rea- tive than their own ferocity, are monsters, unworthy the name ^^ ® ^" of men. They should be considered as enemies to tke human g^n ^^ ap- race, in the same manner as, in civil society, professed assas- parent mo- sins and incendiaries are guilty, not only towards the parti- t'^'^s- 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, Tiniur Bee or Tamerlane, who, like At- tila, were scourges emiDloyed 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. How sor. This requires no proof. Self-defence against unjust ^^^^°*\^'® violence is not only the right, but the duty of a nation, and ^j.' ^^^^^l 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. How invader a just satisfaction. If he will not be content with " ™''-\' ^^" this, a nation a;ains one c;reat advantacre — that of having !°™1"'"* 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. ":^ '^'■■-' ^'^^ The Samnites, instigated by the ambition of their chiefs, ^^° ' 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 Cuius 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 helium, quibus iwccssariuiyi ; et pia ar)na, quibus nulla nisi in arniis relinquitur spes.* * Livy, lib. ix. init. 407 305 OF THE JUST CAUSES OF WAR. BOOK. m. In order to estimate the justice of an offensive war, the nature of the subject for which a nation takes up arms must CHAP. III. § 37. How \)Q firgt considered. We should be thoroughly assured of our an 0^ ensiye j-j^ht, before we procced to assert it in so dreadful a manner. •war IS just p ,'^ ,^ . , ,. ,.,. in an evi- J-ij thereiore, tne 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 knoAV 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 cause. is^ th^t 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 M'hich 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 y/ith 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 be right ; the other disputes it : the one complains of an injury ; just on both tj^g other denies havinc; 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. Sumo- It may however happen that both the contending parties 40S OF THE JUST CAUSES OP WAR. 306 are candid and sincere in their intentions; and, in a doubtful book m. cause, it is still uncertain -whicli side is in the rifrht. Where- -- "^'^' '"' fore, since nations are equal and independent (Book II. § 86, ^''^^^ '■'^- and Prelim. §§ 18, 19), and cannot claim a right of judgment |?"^^ '^^" over each other, it follows, that in every case susceptible of r ' gQy "i doubt, the arms of the tAvo parties at war are to be accounted equally laAvful, 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 ? 4i. AVar nation, it ought, like every other war, to be founded on right undertaken and necessity. 1. On rio;ht : — an injury must have been ac- **^ J?"°^'' ^ 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 Avar of this kind must have necessity to justify it : that is to say, that, to be laAvful, 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. o2 2 K 409 307 OF THE JUST CAUSES OF WAR, ETC. BOOK III. Here a very celebrated question, and of the highest impor- • '"• . tance, presents itself. It is asked, whether the aggrandize- CHAP 5 42. Whe- ment of a neighbouring power, by whom a nation fears she thor the ag- may One day be crushed, be a sufficient reason for making grandize- ^^^ against him — whether she be justifiable in taking up neio-hbour- 3,rms to opposc his aggrandizement, or to weaken him, with ing power the solc vicw of Securing herself from those dangers which can autho- the Weaker states have almost always reason to apprehend me a war f^.Qjjj ^n overgrown power. To the majority of politicians °' ' 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. IIow 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 knoAvn, 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 Avas 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, g 43. Alone, And first, let us observe, that prudence, which is, no doubt, andofitaoii; j^ yirtue highly necessary in sovereigns, can never recommend It cannot ^|^^ ^^^ ^^ Unlawful means for the attainment of a just and give a right ,,,, ,,- , ,, ^, i^ij. to attack laudable end. Let not the safety of tlie people, tliat 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 CHAP. III. probity. Why arc certain means unla-wful ? If we closely consider the point, if we trace it to its first principles, we shall 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 Avith which we are threatened (§ 2G), it is a sacred principle of tlie 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 ? 44. iiow supposes) ; we must, therefore, have good grounds to think ^^'^ appear- oursclves threatened by him, before we can lawfully have re- ^^n^er give course to arms. Now power alone does not threaten an in- tbarright. 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 dei'ive from the circumstance of their being generally or fre- quently united, is, that of taking the first appearances for a suflScient 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 difterent 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 OP WAR, ETC. BOOK III. table ? If the appearances are so easily credited, it is the CHAP. Ill, fg^^]^ Qf ^i^j,^ 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 [ 310 ] them ? I answer, they have a right to form such a union, pro- vided the views by Avhich 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, Avho could have advdsed 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 twe monarchies, — and that, for fear of doing him an injury, ihey 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, tliat 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 Avho 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, i n. It is still easier to prove, that, should that formidable pow- § 45. An- er betray an unjust and ambitious disposition, by doing the "^^^^ '^'^f^ least injustice to another, all nations may avail themselves of ^"'^^ *'^^" 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 m-ged 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 tliat powerful state, by the justice and circum- ? 46. Other spection of her conduct, affords us no room to take exception allowable to her proceedings, arc we to view her progress with an eye \"'V|"^ °^ of indifference? Are we to remain quiet spectators of thcairainsta rapid increase of her power, and imprudently expose ourselves formidable to such designs as it may inspire her with ? — No, beyond all po^er. 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 Home, 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 2e2 413 311 OF THE JUST CAUSES OF WAE, ETC. BOOK HI. guard against a formidable power. There are other means, CHAP. HI. q£ ^ gentler 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- cQj^nected 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 ber. 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- ^}jjj^^ j^q powcr should be much superior to the others, that all, aiaing 1 . Qj, jj^^ least the greater 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 WAR, ETC. 312 They consider the two principal powers, which, on that very book hi, account, are naturally rivals, as destined to be checks on each ^'^^^' '"' other ; and they unite with the weaker, like so many Aveights thrown into the lighter scale, in order to keep it in equilibrium with the other. Tiie 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- ? 49. How librium, and thus maintaining the liberty of nations, did all ^® ^^^ ^^- princes thoroughly understand their true interests, and make g/°Qj\j.jujjj the welfare of the state serve as the rule in all their proceed- ^ay be re- ings. Great potentates, however, are but too successful in strained, or gaining over partisans and allies, who blindly adopt all their ^^''^^ ^"-'^k- views. Dazzled by the glare of a present advantage, seduced ^°^ " 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, Avhen we can, consistently with justice, Aveaken 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 war, 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 fulling under the yoke of a conqueror. On the off'er of e(iuitable 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 see, never gives him aright 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 liim 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 III. CHAP. III. § 50. Be- haviour al- lowable to- wards a neighbour preparing forvwar. proceedings, — the other states have a right to anticipate him ; 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. This leads us to a particular question, nearly allied to the preceding. When a neighbour, in the midst of a profound peace, erects fortresses on our frontier, equips a fleet, aug- ments his troops, assembles a powerful army, fills his maga- zines, — in a word when he makes preparations for war, — are 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 Avord ; 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 OP THE DECLARATION OF WAR, ETC. 314 up any considerable number of forces, his neighbours took their book m. measures accordinirly, formed leagues against him, and obliged "^^^' "^' 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, sh- 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 furnisli 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 M'ith 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, ly. FORM. (142) THE right of making Avar belongs to nations only as a ? 51. De- remedy against injustice: it is the offspring of unhappy ciaration of necessity. This remedy is so dreadful in its effects, so '''"""■• destructive to mankind, so grievous even to the party who has recourse to it, that un(|uestionably 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 Ave have a just cause of complaint. 2. Tluit a rea- sonable^ satisfiiction have been denied us. 3, The ruler of the nation, as Ave have observed, ought maturely to consider (142) See in general, Orotius, B. iii. c. iv. s. 8 ; and 1 Chitty's Com. Law, 378. — C. 53 417 315 OF THE DECLARATION OF WAR, BOOK III. whether it be for the advantage of the state to prosecute his CHAP. IV. yjgij^ ]jj force of arms. But all this is not sufficient. As it is possible that the present fear of our arms may make an Necessity impression on the mind of 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 tear. 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 Avhat 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, g 52. What A declaration of war being necessary, as a further efibrt to it is to con- terminate the difference without the efiiision of blood, by ^^^' 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, [ 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 |ji(re and simple. conditional, -g^^^ ^^ include 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. ? 54. Tho If the enemy, on either declaration of war, offers equitable right to conditions of peace, we are bound to refrain from hostilities ; make war jf^j. ^^ goon as justicc is done to us, that immediately super- ceases on * Livy, lib. i. cnp. 31. 418 AND OF AVAR IX DUE FORM. 316 sedcs all riglit to employ force, ■which we are not allowed to hook m use unless for the necessary maintenance of our ri;^dits. To ""'" CHAP. IV. these offers, however, are to be added securities; for we are ^^"^ .'^^j^'" °^ under no oblifjation 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 Avith it. As to the conditions themselves, — besides the principal subject, we ha,ve 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 '"^^'^^®^°*^'^ law of nations requires. Nevertheless, if custom has intro-^^f ^^j^j./j^o^ 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. Oibor to publish the declaration of war for the instruction and direc- reasous fur tion of her own subjects, in order to fix the date of the rio-lits , ^ °^.^*^^'''" J ~ ^ ^ tv 01 its which belong to them from the moment of this declaration, pubiica- and in relation to certain effects which the voluntary law of tion.(U.']) nations attributes to a wax 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 doAvn 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 Avages defensive Avar, needs ? ^"- ^'-'- not to make any hostile declaration, — the state of Avarfare be- ^""""7'^ "'■""■ ing sufficiently ascertained by the enemy's declaration, or declaration. (143) But there seems to be no ah- was declared by Act of Congress, June solute 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 \atioiis of Sir William Scott, in Nayedc, 4th until May 1.3th, 1846, between 4 Rob. Rep. 2')2 ; Chitty's Law Nat. Mexico and the I'nited 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. 20 ; The ITooj), 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 (Jroat Britain 419 317 OF THE DECLARATION OF WAR, COOK III. open hostilities. In modern times, however, the sovereign CHAP, iv. ^-^^ -g attacked, seldom omits to declare war in his turn, whether from an idea of dignity, or for the direction of his subjects, g 58. When If the nation on whom we have determined to make war it may be -^yiH not admit any minister or herald to declare it, — whatever omitted in ^j^^ custom may otherwise be, we may content ourselves with war. 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. jJ59. iiisnot But uo pcrsou being exempted from his duty for the sole to be omit- rcasou that another has been vranting in his, we are not to ted by way qxq[\, declaring war against a nation, previous to a commence- o reta la- j^gj^^ q£ hostilities, becausc that nation has, on a former oc- lion* , , easion, 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. ^ 60. Time The law of nations does not impose the obligation of declar- er the de- Jjig -^yar, with a view to give the enemy time to prepare for ciaration. ^^ unjust 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 Avas the conduct of that generous prince, Henry the Fourth, towards Charles Emanuel duke of Savoy ; who had vrearicd his patience by vain and fraudulent nego- tiations.* J 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 ntants on a ^^^ ^^ encmv, that he will commit no violence, and will ac- foreign . i *^ • • i i f i • • i • army's en- quamt the Sovereign with the cause ot his coming, — the in- tcring a habitants are not to attack him ; and should they dare to at- country be- tempt it, hc has a right to chastise them. But they are not fore a de- ^^ admit him into any strong-holds, nor can he demand ad- claralion of . . ^ , i *^ i • r. i • i ^-ar, mission. It is not the business ot subjects to commence lios- tilities without orders from their sovereign : but if they arc brave and loyal, they will, in the mean time, seize on all the * See Sully'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. _^[l:^Z:.iI:- After a declaration of war on the part of the sovereign who § 02. Com- has thus invaded the country, if equitable conditions are not menccmcnt offered him without delay, he may commence his operations ; " "^^ ' ' '*^*" 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 arc 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 | &z. Con- nor the property of those subjects of the enemy who are "^"^t to be within his dominions at the time of tlie declaration. They"''*'^*'^"^ ^^' ,. ^ , iTf-1 -n •• wards the came mto his country under the pubhc laith. i>\^ permittmg 5„i,j^gtg (,f them to enter and reside in his territories, he tacitly promised an enemy, them full liberty and security for their return. He is there- ""'^o ^^''^ i° fore bound to allow them a reasonable time for withdrawing *'*i° ^^"""''■.y with their effects ; and, if they stay beyond the term prescribed, |,f ^Yie de- he has a right to treat them as enemies, — as unarmed enemies, daration of however. But, if they are detained by an insurmountable ^^^i'- (i-*^) 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 pcrfecth'' secure in their persons and effects, "provided the}' 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- ^''^'^^'°° *^^ tion and direction of his subiects. He is also to make known ^ " !'!!^'"'/° , . - . '' . manifestoes. ms cleclaratioa oi war to the neutral powers, m order to ac- (144) See in general 1 Chitty's Com. L. 411.— C. 2L 421 818 OF THE DECLARATION^ OF WAT., CHAP. BOOK III. quaint them with the justificatory reasons which autliorize 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, Avhen 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 2^ublication 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 Avar, 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.* § 65. Dcco- In so civilized an age, it may be unnecessary to observe, rum and that, in thoso picces which are published on the subject of war, r°b^*ob'*^'^ it is proper to 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 oifen- 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 eflects. § 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- war in due teristics of a lawful war in due form {justum bellum.) Grotius says,t 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 tiingular ihcmsch-cs propcrli/," — and, moreover, circumstance, that Charles the Se- his protection and favour to such of them cond, king of Great Britain, in his dc- as might choose to emigrate to his de- claration of war against France, dated minions. February 9, IGGS, promised security to f Do Jure Belli ct Pacis, lib. i. cap. French subjects who should "demean iii. ^ 4. 422 AND OF WAR IN DUE FORIVI. 319 on both sides, made by the sovereign authority,'— secondly, book m. that it be accompanied by certain formalities. These formali- ^"^p- ^^- , ties consist in the demand of a just satisfaction [rerum y-ejje- 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. (115) 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^^^^ war, 1 . 1 1 • -i. and to be by custom, are observed in it. ,. , . X-- If f 1 f M T ' noticed in Legitimate and formal warfare must be carefully distm- courts of guished from those illegitimate and informal wars, or rather justice, &o. predatory expeditions, undertaken either without lawful au- (i"^^-) thoritv or without apparent cause, as likewise without thef V- .• ^ ^ , ",. ,. . Ill • 1 • 1 /-I . oe distin- usual lormalitics, and solely with a view to plunder, (jrotius „uished relates several instances of the latter.* Such were the enter- from in- prises of the grandes compagnies which had assembled in formal aud France during the wars with the English, — armies of banditti, "° ^"^ ^ 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; Bluclbni-ne v. Thompson, 15 East, tions. — C. 90, S. P.) observed, that, in order to as- (140) 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 eouu- 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 torrupted, then it is said to be time of that is a point upon which courts of jus- war. £((ri i«jica« • i , i ^ . i • • i^ from him whcn a sovereign lurnishes the moderate succour due in virtue and romaiu of a former defensive alliance, he does not become an asso- neuter. ciate ill 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 ])etwecn two nations, all other states of remain- that are uot boiiiid by treaties are free to remain neuter; and, ing neuter, jf giti^Qi. Qf ^lie belligerent powers attempted to force them to a junction with him, he Avould 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 tliein to join in the contest; and there are two points which claim their consideration: 1. The justice of tlie cause. If that be evident, injustice is not to be countenanced : on the contrary, 438 OF NEUTRALITY, ETC. 333 it is generous and praiseworthy to succour oppressed inno- book m. cence, when we possess the ability. If the case be dubious, ^"*''' ^"' 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 allair, and to embark in the war. A nation making war, or preparing to make it, often pro-§ lor. Trea- poses a treaty of neutrality to a state of which she entertains *'^^ "^ '"®'^- suspicions. It is prudent to learn betimeg 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 alloAvable 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 ow^n 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 rohuid, 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, ? los. Ad- and even necessary. A nation that wishes to secure her own |^'""""' ^^^' peace, when the flames of Avar are kindling in her neighbour- ';„„ ii,^^^ 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?i09. Foun- ofteu ari:>e respecting what neutrality does or does not allow. ^='''*^" ''^'•^^ This subject presents many questions Avhicli authors have dis-["j^^° 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 aflords rules 4oO 334 OF NEUTRALITY, ETC. BOOK III. on this head, as -well as on the others. Some things also have '^"'^''' ^"" grown into custom 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 neutral nations. It is on this principle that we shall lay down the following rules : — § 110. How First, no act on the part of a nation, which falls within the levies may gxercise of her rights, and is done solely with a view to her monevTent °^^^ go^^^j without partiality, without a design of favouring and every ' One powcr 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, ^QY (jQgg [I become such, except on particular occasions, when breach of ^^ Cannot take place without injury to one of the parties, who neutrality, ^as 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 bclvveou Spain and should be obliged to set those prisoners the United Provinces. 440 OF NEUTRALITY, ETC. 335 footlno;, and refuse it to me because they have not the same ^^^^ '"■ confidence in me, this is no breach of neutrality. They lodge '- — — their property Avhere 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 Avere not engaged in war, she gives me no just cause of complaint. In what I have said above, it is supposed that my enemy? m. Trade goes himself to a neutral country to make his purchases. Let ^^ neutral us now discuss another case , — that of neutral nations resort- ^i^ose^which ing to my enemy's country for commercial purposes. It is are 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. (lo2) (152) It must be a continuauco only Dob. 935. It has even been bolden that of such customary trade. See Home on a British-born subject, while domiciled Captures, 215 — 233; De Taxtet v. T/-, 4 Taunt. 238 ; licll y. lickl, I 'Mnulo from that country with a state at war &. Selw. 727 ; and an able speech of with this country. Bell v. Beid, 1 Maule Lord Erskine, 8th March, ISOS, upon & Sclwyn. 727. — C. the orders in Council ; 10 Cobbett's Pari. 56 441 336 OF NEUTRALITY, ETC. BOOK III. On the other hand, whenever I am at war with a nation, CHAP. VII. Ijqj-Ij lYj-y safety 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 ?yar, 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 zvar), 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 sufier, 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 Avar, there are certain rules to be observed, on which Europe seems to be generally agreed. § 112. Con- The first is, carefully to distinguish ordinary goods which traband havB 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 powei's cannot ivith any rea- r 337 "I 8on 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 he a violation of the 7-ights of neutral nations, a flagrant injury to them; — necessity, as we have above observed, being the only reason whieli can authorize any restraint on their trade and navigation to the ports of the enemy. England and the United Provinces 4t2 OF NECITIIALITY, ETC. 331 having agreed, in the treaty of Whitehall, signed on the --d of b'j'jk i"- August, 1689, to notify to all states not at war with France, ■ '"'^^' 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 croAvns were well founded, did them justice.* Commodities particularly useful in war, and the importation of which to an enemy is prohibited, are called contraband goods. Such are arms, ammunition, timber for ship-building, everij 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'^. '^'^^- '^^^o- goods to an enemy, are we only to stop and seize them, pay-^J*®^^ ing the value to the owner, — or have Ave a right to confiscate ^^ confieca- them ? Barely to stop those goods Avould in general prove ted. an ineffectual mode, especially at sea, where there is no pos- sibility of entirely cutting oif 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 * Seo other instances in Grotius de sold both arms and provisions to the Jure Bl'IU 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, 1051, 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 ho 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 eorditt/e idiiI other )iiil cHiiipmeiit of titips of war. cause the Spaniards, "after having, In l.'iOT, ([ueen Elizabeth would not xindor the appearance of commerce, al- allow the Poles and Danes to furnish lured foreign vessels to their port^, 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 observe a greater degree of circum- places." — Ibid, book xv. p. 672. — Ed. spection, did not prevent neutral na- a.d. 1797. tions from carrying on ever}- kind of (153) What are contraband good^, commerce with Spaiu. It is true, in- see 1 Chitty's Comml. L. 444 — 449; dfcd, that, while their own subjects and Chitty's L. Nat. 119— 12S.— C. 443 338 OF NEUTRALITY, ETC. BOOK III. as will add to his strength and render him more dangerous, CHAP. VII. ^Yiiii necessity and the care of her own welfare and safety au- thorize her to take eifectual 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 v.-ar(§ 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. ? 114. We cannot prevent the conveyance of contraband goods. Searching/ -\vithout Searching neutral vessels that we meet at sea : we [ 839 ] liave tlicrcfore a right to search them. Some powerful nations * In our time, tbo king of Spain pro- with military stores; and thus ho hibited all HaiulMirgh sliijis from en- obliged the Hamburgh ers to cancel their taring his harbours, because tliat city treaty with the Barbarians. — Ed. A. D had engaged to furnish the Algerincs 1797. 444 OF NEUTRALITY, ETC. 339 have indeetl, at different times, refused to submit to this book m. search. "After the peace of Vervins, Queen Elizabeth, con- '^"■*p- ^"- tinuing tlie war against Spain, requested permission of the neutral ^ king of France to cause all French ships bound for Spain to^^'P^"^^°*^ 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 sJiip refusing to he searched, ivould from that jyrocceding alone be condemned as a lauful 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 g 115. Ene- seize them by the ricrhts of war: (156) but we are naturally ™y's pro- ■^ ^ ^ ' l' pertyon (154) As to the right of visiting and searching neutral ships, see the cele- brated letter of the Duko of Newcastle to the Prussian Seeretarv, A. n. 1752 ; 1 Collect. JuriJ. 138; and Halliday's Life of Lord Mansfield; Elements of General History, voL iii. p. 222; Mar- shall on Insurance, book i. eh. 8, sect. 5 ; Garreh v. Kensington, 8 Term Rep. 230 ; Lord Erskiue's Speech upon Or- ders in council, 8 March, 1S08; 10 Cobbctt's Pari. 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 clciirly established by the best modem decisions; see Tiarherv. Bluhcx, 9 East Rep. 28.3, and numerous other cases, collected in 1 Chitty's Commer- cial Law, 482 — 189; Chitty's L. Nat. 190 — 1911. The international law upon the subject will bo found admi- rably summed up by Sir AVm. Scott, in his Judgment in the case of the Jfnria, 1 Rob. Rep. 340, 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 Disjmteh, 3 Rob. Rep. 278; Ehahe, 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 ; Ga- ther ina 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 M'heat. Rep. 345; The U. States V. La Ji.iine Eugenie, 2 Mass. Rep. 409 ; The Marinnna Flora, 3 Mass. Rep. 116 ; Moley v. Shattucl; 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. 196—199, 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. Blal-es, 9 East, 283.— C— {See Muley v. Shut- tueJc, 3 Cranch, 458. } (156) 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 III. bound to pay the freight to the master of the vessel, who is not to suffer by such seizure."*' (157) CHAP. VII. board a neu- The effects of ncutrals, found in an enemy's ships, are to ffj^^'^T ^^ restored to the owners, against whom there is no right of trai property ^'^"^^'^''''^^^'^ ' ^^^ without any allowance for detainer, decay, on board aa &C- (158) The loss Sustained by the neutrals on this occa- enemy's sion is an accident to which they exposed themselves by em- s^'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 haj^pens unfortunately to be on board an enemy's vessel. (158) g 117. Trade Hitherto we have considered the commerce of neutral na- with a be- tions with the territories of the enemy in general. There is a r/oT) *^^"' pai'ticular case in 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; and Twilling Ihict, 5 United States. The Ncveide, 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, Do Witt, " the abrogation shall on Insurance, b. i. c. viii. § v. The of that pretended French law, that ene- loss of voj^age and damage may be in- mies' iproperty involves in confiscation the sured against; Barker v. Blakes, 9 East, 'propert}) 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 400—492 ; Chitty's L. Nat. 129—144, shall bo 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 says, that the immunity of the ves- blockade, Sir W. Scott said, " Three set shall extend to the cargo, even if ene- 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- tho former. — Edit. A. d. 1797. tion, either by going in or coming out (157) {Schwartz v. TIlc Ins. Co. of with a cargo laden after the commence- North America, 3 Wash. C. C. Rep. mont of blockade." In case of Betsy, 117.}— 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. — {Fitzsimmonsv. The New- surod by the terms of the charter-parly, pj'"'*^ ^"^- ^"-i ^ Cranch, 185.} ■j- Plutarch, in Demctrio. 446 OF NEUTRALITY, KTC. 340 for the recovery of their liberties, they would not suffer the book m. English to carry goods to Dunkirk, before which the Dutch ^'"'^''" ^"' fleet lay.* A neutral nation preserves, towards both the belligerent ? lis. im- powers, the several relations which nature has instituted be- Partial offi- tween nations. She ought to show herself ready to render '^^/'^ "*''*■ 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 Avhich are due to friends : much less does she aiford 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 botli parties such articles as are used in war. Amidst all the wars which disturb Europe, the Switzers preserve their territories in 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 § no. Pas- is at peace (Book II. § 128) ; and this duty extends to troops sage of as well as to individuals. But it rests with the sovereign of ^^^^^^„^ the countr}'- to judge whether the passage be innocent ; and it neutral is very difficult for that of an army to be entirely so. In the «)untry. 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 Avhole arm}^ is by no means a matter of indiftcrence, he '^"se to be who desires to march his troops through a neutral country, "*''''^'' must apply for the sovereign's permission. To enter his ter- ritory Avithout 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 Avhatcver, 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. 4-!( 341 OF NEUTRALITY, ETC. BOOK in. tlieir entrance may be productive of the most serious conse- CHAP. VII. quences. ^ 121. It If ^^^*^ 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 casc being no longer innocent. good rea- jj^^ ^^l doubtful cases WO must submit to the iudgment of d 122. In ^^® 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 acquicsco 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 foi'ce 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 Avhich 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 Avill 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 A^ery face of it, and admits not of the smallest doubt, is tliat 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 j'-ou, it is allowable for yow., even against his will, to make use of what belongs to him. When, therefore, an army find tliemselves 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. 44S OP 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 ^^^^' ^"' 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, and 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 ^^^^ ^^ ^^°- our territory, may authorize us to refuse them permission to ^.^"^ ^^* ^' V ' V 1 rizGs Q. rc- enter. We may have reason to apprehend that they will be fuggi^ tempted to take possession of the country, or at least to act as masters Avhile 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- *ie™and of prehend any hostile attempts or violent proceedin2;s on the ^^''^'"y Z'^^- part ot those who ask permission to pass. It any such secu- purity, 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,t) 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 Avill 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 prince of much superior power. But, is it always incumbent on us to give every security a § 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- °^*^<^^''"^y '« tween the different reasons that may exist for our passing ^J„^, ^7sT through the country ; and we are next to consider the man- curity ro- ' 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. t By the Eleans, and the ancient inhabitants of Cologne. See Grotius, ibid. 57 2 N 2 449 342 OF NEUTRALITY, ETC. BOOK III. of it, as in the case of a refusal (§ 122). But, if necessity au- CHAP. Yir. t}jQj.j2es me to pass, 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. § 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 ** ?J^l *u it to the other, unless a change of circumstances affords her wards both ' . o , parties as to Substantial reasons lor 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. ^ 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, lies against jn^jd^ jggg ^q make it the ground of a hostile attack upon me, state for sincc 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 SAVord, Avho 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 Btick 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 '^ A poworful State will dcspise these unjust menaces-: firm refuse it and unshaken in what she thinks due to justice and to her own from a fear reputation, shc will not suffer herself to be diverted by the fear of the re- of a groundless resentment : she will not even bear the menace, the ^posito -^^^ ^ vfeak nation, unable to support her rights, will be under party ; a nccessity of consulting her own safety ; and this important 450 OF NEUTRALITY, ETC. 343 concern will authorize her to refuse a passage, which would book m. expose her to dangers too powerful for her to repel. CHAP. VII Another fear may also warrant her in refusing a passage, ^ 129. And namely, that of involving her country in the disorders and'^^^'iier calamities of war. For, even if the party against whom a^r""!^^. passage is requested, should observe such moderation as not ^„/„g ^jj^ " to employ menaces for the purpose of intimidating the neutral theatre of nation into a refusal, he will hardly fail to demand a passage '^^^^ 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 Avith 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 ^ 130. what thing which is naturally connected with the passage of troops, is included and without Avhich the passage would be impracticable ; such ^° ^^^ s^^^^ as the liberty of carrying with them whatever may be neces- ° P''*^*=^s<'- 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 OAvn provisions. He who grants the passage is bound to render it safe, as far ^ 1.31. 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 i^'^^^^^s®- granted. For this reason, and because foreigners can do nothing in § 1.32. 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 ^'f ""f "i™''- other act of hostility. The Dutch East-India fleet having put tr!,/"^,^^"/"" into Bergen, in Norway, in 166G, to avoid the English, thetry. (I60) 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. 2S9, p. 129: ^lar- (160) At present, by the general ten's L.N. b. viii. chap. vi. s. 6; and law of nations, the whole space of the see 1 Molloy, b. i. chap. iii. s. 7 ; and 451 344 OP NEUTRALITY, ETC. BOOK. in. To conduct prisoners, to convey spoil to a place of safety, CHAP. Tii._ g^j,g j^gj.g Q^ ^^^^ consequently not to be done in a neutral coun- mies. 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. § 133. Neu- On the other hand, it is certain that, if my neighbour af- trai country fords a retreat to my enemies, when defeated and too much no .0 a or ^ygr^]jgj^g(j ^q escape me, and allows them time to recover, and a retreat to i r» i i • n t • ^ \ 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, eir ene- ^^ 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. ? 1.^4. Con- Troops to whom a passage is granted are not to occasion the least damage in the country ; they are to keep to the pub- lic roads, and not enter the possessions of private persons, — chap. i. s. 16. { r^e^wn, 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 each 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- wo 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, waH F lad yen, ten's L. Nat. b. viii. c. vi. s. 6, Sir W. 1 Rob. Rep. 115 ; 8 T. R. 270 ; Atche- Scott, in tlie Twee Gebroeders, 3 Rob. son's Rep. 8, note 9 ; and see Ha vc- Rep. 162—336; and tho Anna, 5 Rob. loch v. liockwood, Atcheson's Rep. 33, Rep. 373, observes, that no proximate 43. — C. acts of war are in any manner to bo 452 duct to bo observed by OF NEUTRALITY, ETC. 345 to observe tlic most exact discipline, and punctually pay for book m. everything with which the inhabitants supply them. And if ^'"^''- ^"•, the licentiousness of the soldiers, or the necessity of certain ^roops pass- operations, as encamping or intrenching, has caused any '°^' ^"^°"^ 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, Avhen 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 fur 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 passngc, — 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'lssagemay requires it for a war that is evidently unjust, — as, for instance, ^^j. ^ ^^j. to invade a country without any reason, or even colourable evidently pretext. Thus Julius Caesar denied a passage to the Ilelvetii, 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. viir. CHAP VIII. -f OF THE RIGHTS OF NATIONS IN WAR, — AND, FIRST, OF WHAT WE HAVE A RIGHT TO DO, AND WHAT WE ARE ALLOWED TO DO TO THE enemy's PERSON, IN A JUST WAR. (161) g 136. Ge- WHAT we have hitherto said, concerns the right of making nerai prin- -vyar : — let US now proceed to those rights which are to be re- "vviT °^ *^^ spected during the war itself, and to the rules which nations against an should reciprocally observe, even when deciding their differ- enemyina ences 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 Ave find necessary for the attainment of that end, — for the purpose of bring- ing him to reason, and obtaining justice and security from him. 1 137. 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- tween what tainment of that end. Whatever we do beyond that, is repro- ri-'ht to do bated by the law of nature, is faulty, and condemnable at the and what is tribunal of conscicncc. Hence it is that the right to such or barely ai- such acts of hostility varics according to circumstances. What lowed to be |g -^ ^.^-^^ perfectly innocent in war, in one particular situa- flonft witn impunity tion, is not always so on other occasions. Right goes hand between in hand with necessity and the exigency of the case, but never enemies. excecds them. But as it is very difficult ahvays 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 TTIE RIGHTS OF NATIONS IN WAR. 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, ^^^^' ^"^: 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 oAvn 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 Avill 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 § 138. The violence, and forcibly to compel him who is deaf to the voice "gbt to of justice, we have a right to put in practice, against the'^*^"^'^"/'" enemy, every measure that is necessary in order to weaken eve^^jusUfi- him, and disable him from resisting us and supporting his able me- injustice ; and we may choose such methods as are the mostttod. 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 ? 139. The right to repel his violence ; and he who takes up arms to right over oppose me when I demand only my right, becomes himself *^® enemy's the real aggressor by his unjust resistance: he is the first ^^'^^'*°' 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. AVhen 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 Avho join him, and who fight in support of his cause. But the very manner in which the right to kill our enemies? 140. is proved, points out the limits of that right. On an enemy's I'imits of submitting and laying down his arras, we cannot with justice *^'^ "^^*' take away his life. Thus, in a battle, quarter is to be given 455 348 OF THE RIGHTS OF NATIONS IN WAR. BOOK III. to those who lay down their arms ; and, in a siege, a garrison • offering to capitulate are never to be refused their lives. The CHAP. VIII. An enemy Jiumanity with which most nations in Europe carry on their killed after "^^^'^ ^^ present Cannot be too much commended. If, some- ceasing to times, in the heat of action, the soldier refuses to give quarter, resist it is always contrary to the inclination of the oflScers, who eagerly interpose to save the lives of such enemies as have laid down their arms.* § 141. A There is, however, one case in which we may refuse to particular spare the life of an enemy who surrenders, or to allow any case, in capitulation to a town reduced to the last extremity. It is, ter may'bT whcn that enemy has been guilty of some enormous breach refused. 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. § 142. Re- This leads us to speak of a kind of retaliation sometimes prisais. 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 destined for Flanders, they despatched History of the Disturbances in the a squadron to wait for them in the Low Countries, it appears that the war strait of Calais, with orders to drown between the Dutch and Spaniards was without mercy every soldier that was carried on with unrelenting cruelty at taken j and the order was punctually sea, although the parties had agreed to executed. — Book xiv. p. 550. — Edit. a.d. observe the usual rules of moderation 1797. on land. Intelligence being received (162) As to reprisals and letters of by the confeder.ate states, that the Spa- marque in general, see ante, b. ii. ch. niards had, by the advico of Spinola, xviii. § 334.^-C. embarked at Lisbon a body of troops 456 OF THE RIGHTS OF NATIONS IN AVAR. 48.- to retaliate, for the purpose of obliging him to observe the book nr. laws of war. It is a dreadful extremity thus to condemn a . f"AP- "^'"- 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. I Alexander the Great, having cause of complaint against Darius for some malpractices, sent him word, that if he continued to make Avar in such a manner, he would proceed to every extremity against him, and give him no quarter. § It is thus an enemy Avho violates the laAvs of Avar 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 ? 14.3. AVhe- lawful to punish Avith death a governor Avho has defended his ^^^^ ^^°' town to the last extremity, or Avho, in a weak place, has had ^^^^ ^^^ the courage to hold out against a royal army ? In the last be punished century, this notion still prevailed ; it AA'as looked upon as one «^ith death of the laws of Avar, and is not, even at present, totally exploded. ^^^ ^^ °^' What an idea ! to punish a braA^e man for having performed ^^^^^ his duty ! Very different were the principles of Alexander the Great, when he gaA^e orders for sparing some Milesians, on account of their courage and fidelity. \\ "As Phyton Avas led to execution, by order of Dionysius the tyrant, for having obstinately defended the town of Rhcgium, of Avhich he was governor, he cried out, that he was unjustly condemned to die for having refused to betray the toAvn, 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. Grace, lib. ii. cap. Edit. A. D. 1797. i.— Edit. a.d. 1797. ■\ Lysander, having captured the J Neque se in obsides innosios, sed Athenian fleet, put the prisoners to in ipsos, si defecerint, sajviturum ; nee death, on account of various cruelties ab inermi, sed ab ariuato hoste, pocnas practised by the Athenians during the e.xpotiturum. — Tit. Liv. lib. xxviii. course of the war, but principally on g Quint. Curt. lib. iv. cap. i. and ii. account of the barbarous resolution || Arrian. de Exped. Alexand. lib. i. which they were known to have adopt- cap. xx. ed, of cutting off the right hand of every 58 2 457 349 OF THE RIGHTS OF NATIONS IN WAR. BOOK III. soon avenge his death." Diodorus Siculus terms this "an CHAP. Yiii. m^j^g^ punishment."* It is vain to object, that an obstinate defence, especially in a weaT^ 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- diff"erent a post, forty days from the opening of the trenches, — and, finally, to save the toAvn, 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, Avhatever 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, tius, lib. iii. cap. ii. ^ xvi. n. v. and when, refusing to accept of reason- ■f The false maxim which formerly able conditions offered to them, thoy prevailed on thi.s subject, is noticed in undertake to arrest the progress of a the relation of the battle of Mussel- power which they are unable to resi.st." burgh (De Thou, vol. i. p. 287). "The — Pursuant to that maxim, Cajsar an- goneral (the duke of Somerset), the re- swered the Aduatici that ho would gent of England, was on this occasion spare their town, if they surrendered much admired for his clemency, which before the battpring-ram touched their induced him to spare tho lives of the walls; and the duke of Alva strongly besieged (tho garrison of a castle in blamed prosper Colonna for having Scotland,) notwithstanding that ancient granted terras 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. h. 17U7. obstinately persevere in defending an J See his life. 458 OF THE RIQIITS OF NATIONS IN WAR. 350 honourable means may be employed to dissuade a governor book lii. from ineffectually persevering to the last extremity ; and such chap, vm. is the present practice of all prudent and humane generals. At a proper stage of the business, they summon a governor to surrender ; they off'er 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 aff'airs, 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 ho 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, — 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-g U4. Fu- mics, are guilty of a crime against him ; and he has undoubt- gitives aud edly a riglit to put them to death. But they are not properly 'i«-"s«'«"t'^'"s. considered as enemies : they arc rather perfidious citizens •^ But it is not lawful to employ in Louis's hands) should he put to menaces of every kind in order to in- death in his sight. Philip replied that duco 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 hiui, 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 ho ex- ho would disgrace himself by the por- periencod, informed the governor. Phi- petration of so barbarous a deed. — lip, son of Antony, the Bastard of Bur- Hist, of Louis XI. 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 III. traitors to their country ; and tlieir enlistment with the enemy CHAP. VIII. 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 number of covered wagons, in which they save the deserters, g 145. Wo- Women, children, feeble old men, and sick persons, come men, chil- under the description of enemies (§§ 70 — 72) ; and we have dren, the certain rights over them, inasmuch as they belone; to the sick.' nation with whom we are at war, and as, between nation and r 352 1 nation, all rights and pretensions affect the body of the society, together with all its members (Book II. §§ 81, 82 — 344). 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 oflBcers 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.* § 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. remote 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. § 147. Pea- Formerly, every one capable of carrying arms became a sants, and, soldier when his nation was at war, and especially when it * See Simler, de Repub. Helvet. 460 OF THE RIGHTS OF NATIONS IN WAR. 352 ■was attacked. Grotius, however,* produces instances of book m. several nations and eminent comraanders,t who spared the -*^*- -^"'■- peasantrj, in consideration of the immediate usefulness of in general, their labours. | At present, war is carried on by regular "" "■^*"^'' troops : the people, the peasants, the citizens, take no part ^^^'^'^'^ in it, and generally have nothing to fear from the sword of the enemy. Provided the inhabitants submit to him who is master of the country, pay the contributions imposed, and [ 353 J 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 Avho 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 ? 14S. The principles of humanity oblige him to spare, — all those persons "S^t of belonging to the opposite party, (even the women and chil- ™^g^j.°^J^"" 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. si. § xi. ami make war only against those who t Cyrus, Belisarius, &c. appeared in arms : — and the proposal t 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, 2o2 461 353 OF THE RIGHTS OF NATIONS IN WAR. BOOK III. CHAP. VIII, I 149. A prisoner of war not to be put to death. will be censured for not conforming to a custom established by 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, [ ^^■^ J who 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. As soon as your enemy has laid down his arms and sur- rendered his person, you have no longer any right over his life (§ 140), unless he should give you such right by some 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. Prisoners may be secured ; and for this purpose they may be put into confinement, and even fettered, if there be reason to apprehend 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 ^ 150. How prisoners of war are to bo treated. * Epist. Pet. Arrag. apud Petr. de therlands, at the persuasion of the Vineis. count de Fuentes, resolved no longer ■(• In 1693, the council of the Nc- to observe towards the United Pro- 462- OF THE IIIGHTS OF NATIONS IN WAR. 354 but, those of compassion towards a conquered enemy who has book m. submitted to his arms. Let us, in this particuhir, bestow on '^"^^' ^'"' the European nations the praise to Avhich 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 side's, have experi- enced from those generous nations. And what is more, by a custom Avhich 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 Avho 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 ? 151. Whe- been proposed. AVhen we have so great a number of pri- ther i>rison- soners that we find it impossible to feed them, or to keep them ^'^^' ^^Z ■■to 1 -1 1 Tin in cannot be With saiety, 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 ^° tieath. 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 tho Spaniards to re-es- rcndcrs 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 bo made prisoner, 532], are called belli comtncrcia,— the and, under tho 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 dcriry. and still more of each prisoner was then settled at a the murmurs of tho military, who saw month's pay. — Grotius, Hist, of Ne- tbemsclves exposed to an infamous therlands, book iii. death in ease of falling into the enemy's 4C3 355 OP THE RIGHTS OF NATIONS IN WAR. BOOK iir. dition of not carrying arms against him till the conclusion of _CHAP. Tin, ^jjg ^Yj^j. . gjj^gg Jig 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 J 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 Avhich his warlike and formidable opponents had excited in his mind, sent into Siberia all the j^risoners 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 Englnnd, 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 * Soo Anson's Voyage round the World. {P. 382, 38.3. Lond. Ed. 4lo. 1756.} 464 OF THE RIGHTS OP NATIONS IN WAR. 356 motions from an eminence, supposed it was their intention to book nr. return to the charge. At the same moment, he received in- chap, vm. 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 80 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 ^'^^^ prison- rendered themselves personally guilty of some crime deserv- ^"^^ ''I ^^"^ ing of death. Tlie ancients used to sell their prisoners of nj^de slaves. 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, Avhat is life Avithout freedom ? If any one counts life a favour when the grant of it is attended Avith 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, cither to prevent their ? isr,. Ex- returning to join the enemy again, or with a view to obtain <^i>ange and from their sovereign a just satisfaction, as the price of their '""°^'"" ''^ liberty. There is no obligation to release those who are (jg. P"^''"®''*- 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 VI. 59 465 SS7 OF THE RIGHTS OF NATIONS IN WAR. BOOK in. evils of war, have, with regard to prisoners, introduced humane CHAP. Yiii. ^^^ salutary 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 Avith 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, rorure° ^^ ^*^*^^^ ^^ ^^® ^^^ *^^^ mcaus of 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 Avar 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 Avorld. ^ 155. Who- Since the present chapter treats of the rights which war ther an ene- givcs US over the pcrson of the enemy, this is the proper my may place to discuss a celebrated question, on Avhich authors have a'slassinated ^^^cn mucli divided, — and that is, Avhether we may lawfully or 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 indifierent. 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, 466 OF THE EIGHTS OF NATIONS IN WAR. 358 capable of spreading desolation over the Avhole face of the book m. earth, and against which the most just and equitable of sove- ^"^p- ^'"- reigns, even though supported by the m;ijority 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 OAvn 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 Avould be more commendable on both sides to renounce every kind of hostility which lays the enemy under a neces- [" g^O ] 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 Lacedi^monians, who, under the conduct of Leonidas, broke into the enemy's camp, and made their way directly to the Persian monarch's tent,J 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. i. pro P. Sextio. — Valer. Max. lib. iii. cap. J Justin, lib. ii. cap. xi. iii. — Plutarch, in Poplicol. 467 369 OF THE RIGHTS OF NATIONS IN WAR. BOOK in. I give, then, the name of assassination to a treacherous CHAP. Yin. jjjur(jgj.^ -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, Avhat 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, Avould 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 affection 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 bead,'' be ordered Cwsar and Cicero, in tbe Melanges de bim to be despatcbed witb tbo same Litteratuvo et Poesies. — Farrudge, sul- poniard witb wbich he bad intended to tan of Egypt, sent to Timur-bec an perpetrate tbo abominable deed. Tbe ambassador, accompanied by two vil- body of tbo traitor was tben committed lain.*, who were to assassinate tbat to tbe flames, as an example to otbers. conqueror during tbe audience. This Tbe two assassins wore only condemned infamous plot being discovered, "It is to suffer tbe amputation of their noses not," said Timur, " tbe 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 tbe 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 bo a crime to suffer sultan. — } Petis do la Croix. { Hist, of bim and bis accomplices to live." Pur- Timur-bec, book v. chap. xxiv. {p. 31'?. suant, therefore, to tbat passage of the Ed. Delf. 1723.} Koran which says that " treachery falls 468 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 ; . '^"■^'•- ^"'- 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 ^milius rejected with horror the proposal of I'yrrhus'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."t 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, Avho 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 makinir it his glorv 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. g xv. g Armis bella, non venenis, geri de- ■f O ic yap ra'ra ari xapiri imwoiicv, bere. — Valer. ]\Iaxim. lib. vi. ch. v. aXX' ojrojj jtri to aov iraOo; ijjiiv &taSo\riv num. i. evcyKr). — Pint, in Pyrr. || Non fraude, neque oceultis, sed pa- J Sed communis exempli et fidei ergo lam, et arraatum, — populum Romanum visum est, uti to salvura velimus ; ut bostes suos ulcisci. — Tacit, Annal. lib. ii. essot, quern armis vincere possemus. cap. Ixsxviii. — Aul. Gell. Noct Attic, lib. iii. cap. f Quint. Curt lib. iv. cap. .xi. num. v'ii- xviii. 2P 469 361 OF THE RIGHTS OF NATIONS IN WAR. BOOK in. ticcs, they should use all possible care to prevent it. It was CHAP. VIII. -yyisely Said by Euraenes, 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 Avas 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 ther poison- yf'ith. a little morc plausibility. At least, there is no treachery ed weapons j^ ^-^^ case, no clandestine machination. But the practice is in^war '' 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 ;| and they are all Avarranted by their com- mon safety to repress and punish the first Avho should offer to break through that law. ^ 157. Whe- A still more general unanimity prevails in condemning the ther springs practice of poisouiug waters, wells, and springs, because (say ^^7 ned some authors) we may thereby destroy innocent persons, — 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. (lt)3) g 158. Dis- I cannot conclude this subject, of what we have a right to positions to ([q against the person of the enemy, without speaking a few * Nee Antigonum, nee quemquam (163) But, in modern warfnrc, what- ducum, sic velle vincere, ut ipso in so ever may bo the necessary practice in exemplum pessimum statuat. — Justin, starving the besieged fortress into a lib. xiv. cap. i. num. sii. surrender, wo have instanced the Eng- f Quern quidem [Bessiim] cruci ad- lish supplying the French army with fixum videro festino, omnibus regibus medicine, to prevent tlio progress of a gentibusque fidei, quam violavit, me- destructive disorder, although, if a petty ritas poonas solventum. — Q. Curt. lib. jjolicy were allowed to prevail, such an vi. ch. iii. num. xiv. indulgence of humane feeling might ap- f Orotius, book iii. ch. iv. § -wi. pear injudicious (ante). — C. § Grotius, ibid, g xvii. 470 OF THE RIGHTS OF NATIONS IN WAR. 362 words concerning the dispositions we ought to preserve to- book m. Avards him. They may already be deduced from what I have ""*" CHAP. VIII. hitherto said, and especially in the first chapter of the second '^« preserved IT n . , 1 , • m I, towards an hook. Let us never forget that our enemies are men. i hough g^g^^y reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest oui'selves 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 Solcure, 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 Lacedamoni- then occupied by a Laccdajmonian gar- ans, with a noble regard to justice, and risen ; 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. Grsec. lib. i. cap. iii. — for it at Lacedicmon, pleaded in his Edit. A. D. 1797. defence, that, in surrendering the city, f Watteville's Hist, of the Helvetic ho had not acted through ill-will to the Confederacy, vol. i. p. 126. Iiaccd«monians, or under the influence f In the year 1743. 471 363 OF THE RIGHTS OF NATIONS IN WAR. BOOK in. imitate them, even when not prompted to the practice by CHAP. Yiii. jjjj^^jye 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, Avhen 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 Aveak 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. 3 159. Ten- Formerly, he who killed the king or general of the enemy derness for was Commended and greatly rewarded : the honours annexed the person ^j^q gpolia ojnvia are well known. Nothing was more natural : of a -ing -^^ former times, the belligerent nations had, almost in every who IS in . , . ' f, R . ■^ , T T arms against mstancc, their saiety and very existence at stake ; and the us. 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 * Tiraur-bec made war on Joseph share those new fruits with that prince Bofy, king of Carezem, and subdued when so near him : and accordingly be his liingdom. 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 modcra- of Carezem received this instance of tion and politeness which is thought politeness in a brutal manner; he or- peciiliar to our modern warriors. Some dcred the melons to bo thrown into mehjns being brought to him whilst he the foss6, 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 Tiniur-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 not bound to observe that moderation except where we have ^ a fair opportunity of making him prisoner.* BOOK. in. AP. VIII. 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 ^ 160. Prin- right against her enemy, — 1. a right to obtain possession of "pies of the her property withheld by the enemy ; to which must be added "^^^ "^^"^ the expenses incurred in the pursuit of that object, thejQ^^jngto 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 firod 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 be granted either to him or to the garrison. But the Swedish monarch would never per- mit such a step to be tiiken, telling his otHcers that the governor and the Saxon cannoneers were perfectly right in act- ing as they did, that it was himself who made the attiick upon them, and that the war would be ^t an end if they could kill him ; whereas they would reap very little advantage even from killing the principal officers of his army. — Ilistoiro du Nord, p. 26. — Edit. A. D. 1797. (161) See, in general, Grotius, eh. 6 ; Home on Captures ; Marten's L. Nat. 60 2 287 ; and the modern decisions, 1 Chit- ty's Commercial Law, 377 — i.37 ; 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, aiiie, 352 ; and see yotitig, 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), post, 365.— C. p2 473 BOOK III. CHAP. IX. gl61. The right of seizing on thein. 364 OF THE RIGHT OVER ENEMIES' PROPERTY. particularly relates to the enemy's property. On certain oc- casions, 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. We have a right to deprive our enemy of his possessions, of every thing which may augment his strength and enable him to make 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 w.-ir, or for the expenses and losses incurred in its prosecution : — in a word, we do ourselves justice, g 162. AVhat The right to security often authorizes us to punish injustice is taken qy violence. It is an additional plea for depriving an enemy from tie ^^ some part of his possessions. This manner of chastising a way 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 aft 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 punislunent 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 Ilenry the Great was of singular advantage in co-operating with his valour, when that good prince found himself com- pelled to conquer his own kingdom. Those who would have continued his enemies if only subdued by arms, were won by his goodness, and became affectionate subjects. ? ]fi3. What In fine, wo seize on the enemy's property, his towns, his is withheld provinccs, in order to bring him to reasonable conditions, and from him, (jQjjQpei lii^ to acccpt of an equitable and solid peace. Thus obi^^'c him much 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 satisfaction, 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 ho had, in ro- of more importance to him. [Note by turn for 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 ^ootj.{U5) 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 oivn 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 wdth 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 "I 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, poHt, g 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, whoso territories have been conquered by the Briti.sb, may be recovered on an information by the English attorney-general from the banker. Decidetl in Privy Council, reversing the judgment of the court be- low at Bombay. See Holt's case, Ni. Pri. 113; Lindo v. Rodney, Douglas, 313; Caux v. Eden, Douglas, 694; El- phinstonc v. liedreechnnd, Knapp's Rep. 316; Chitty's Gen. Practice, 2 n. (/>), 16 n. (t). Id. SIS. But to this rule there is an exception, as regards any trust which may be enforced in a court of equity ; Pearson v. Belcher, 4 Ves. 627 ; Vhaloner v. Samson, 1 Bro. pi. 149 ; and see Hill v. lieardon, 2 Russell's Rep. 60S, qualifying 2 Sim. & Stu. Rep. 437 — i51; 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 cotirt 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 III. has been forced, and sometimes that of a town taken by as- ^""'" '^' sault. In several 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. § 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 contributio7is. 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 inhumanit}^ : 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 the 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 witliout the least advantage to the belligerent sovereigns. Whence comes it that so noble an ex- ample is not universally imitated 't § 166. AVast,o If it is lawful to take aAvay the property of an unjust enemy and destruc-jn order to Weaken or punish him, (§§ 161, 162), the same mo- tives justify us in destroying what we cannot conveniently 476 OF THE RIGHT OVER ENEMIES' PROPERTY. 366 carry away. Thus, wc waste a country, and destroy the pro- book hi. visions and forage, that the enemy may not find a subsistence ^^^^' '^' there: we sink his ships when we cannot take them or bring [ 367 ] tliera 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 g 167. Ra- farther : a country is totally ravaged, towns and villages are "-'^s^^s and sacked, and delivered up a prey to fire and SAvord. Dread- ^"™'°»- 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 Avill 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 wc 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 cheek the impetuosity of a torrent which he was unable to Avithstand. Thus, the Swedes were worn down Avith Avant and fatigue ; and the Rus- sian monarch reaped at PultoAva 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, Avithout necessity, imitate the czar's conduct, Avould bo guilty of a crime against his people : and he Avho 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 HI. the French ravaged and burnt the Palatinate.* All Europe CHAP. IX. resounded with invectives ao;ainst such a mode of wag-insr war. It was m 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 thoso cdificcs which do honour to human society, and be spared. Jq j-^qj. 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 Grustavus 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 Avho lays waste gardens, vineyards, or orchards, for the pur- pose of encamping on the ground, and throwing up an en- trenchment. If nny 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. ? 169. Bom- In bombarding towns, it is difficult to spare the finest edi- barding ficcs. At present we generally content ourselves with batter- towns, jjjg j.}^g 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. ^ ii. note xi. f See his letter in Procopius. It 478 OF THE RKillT 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 ^"'^^^ -^ 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 moiuion of war, nothing is more natural, nothing more justifiable, than ^'^'''"^^^^• 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 thetti, 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? 1:2. Ge- moderation which we ought to observe, even in the most just ^^^'^^ """J^ ^f war, in exerting our right to pillage and ravage the enemy's "^^^j^'^^.'^o'i country. Except the single case in which there is question the evil of punishing an enemy, the whole is reducible to this general which may rule. — All damage done to the enemy unnecessarily, every ^^ done to act of hostility which does not tend to procure victory and *° ^°®™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 § 173. Rule impunity, and to a certain degree, tolerated, between nation ^^ t^® ^o- and nation. How then shall we, in particular cases, deter- ^"^^^^ ^^"^ • ,i • • , 1 , 1 1 • of nations mine with precision to what lengths it was necessary to carry ^n the 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 III. 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. ^"^^- ''-'^- If jou once open a door for 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 SAVord 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 Avhether 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 Avhich 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 tlie 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- 480 OP FAITH BETWEEN ENEMIES. 370 cessary. Cicero condemns the conduct of his countrymen in book m. 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 ] OP 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 to be sac ' between of nations, as we have shown in an express chapter (Book II. ^° ^^ sacred Ch. XV.) It is sacred among men, and absolutely essential 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 betvreen 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 III. CHAP. X. [ 372 ] §175. What treaties are to be ob- served be- tween ene- mies. § 176. On what occa- sions they may be broken. difFerence, the least quarrel, would produce a war similar to 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- 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) The conventions, the treaties made with a nation, are broken or annulled by a war arising between the contracting parties, either because those compacts are grounded on a tacit suppo- sition of the continuance of peace, or because each of the par- 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. But conventions made during a war are like all other com- pacts and treaties, of which the reciprocal observance is a tacit condition (Book II. § 202) : Ave are no longer bound to observe 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, Ave may nevertheless suspend the effect of a promise in order to compel him to repair his breach of faith ; and Avhat 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. (166) To this doctrine, the prohilu- tion of subjects of bcUigcrent states having commercial contracts with each other, and the prohibition in Grca* 482 Britain of contracts of ransom, consti- tute exceptions, post, 403 — 4 4. — C. t Histoire de Guillaume III. torn. ii. p. 148. OP FAITH BETWEEN ENEMIES. 372 Good-faith consists not only in the observance of our pro- book iir. mises, but also in not deceiving on such occasions as lay us <^h^p- ^- under any sort of obligation to speuk the truth. From this ^ ,„„ q. subject arises a question which has been warmly debated in lies. 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 m.en, — 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 Avhen 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 w"ho 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 Avould 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 oui-- * Fahiloqvy, false speaking, untruth, falsehood. 483 373 OF FArni between enemies. liooK HI. selves, do not clash with the common duties of humanity, so ^"^^'- '^- 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 -yyo^jg in wliicli we are not obliged to speak truth, or by some war '^ ^^^ feint, 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 eifusion 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 renson and humanity. Nevertheless, town, were put to death. In 1597, if they were in disguise, or had em- prince Maurice attempted to take Vcn- 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, simj)ly 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 JVetherlands.) 8incc that time, made in a time of profound peace; and the 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, nishmcnt of death which was inflicted in case of being taken, treated in a dif- on them. [See page 321.] ferent manner from other prisoners: 484 OF FAITH BETWEEN ENEMIES. 374 employed for the purpose of surprising the French army at book hi. Steinkirk. But, through the activity of the French general, ' ^"^''- ^- 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 ofl' 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 llouums) 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.| 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 * Moruoircs tie Fciuiuicrcs, toin. iii. whitli ])rovcd fatal to the Trojans : — p. 87. 111c non, inclosus eiiuo .Minervaj (167) See an instance of similar Sacra nicntito, male feriatos baseness, BaiDiunni, 1 Kob. Kep. 215 ; Troas, et lactam Prianii choreis ante, § G9, page 321. — C. Falleret aulam ; t This was the practice of the an- Sed palam captls gravis, cient Gauls. Sec Livy. — It is said of Ilor. lib. iv. od. C. Achilles, that he was tor fighting open- J Virg. .En. ii. 390. ly, and not of a disposition to conceal § Tit. Liv. lib. xlii. cap. 47. himself in the famous wooden horse, 2 Q 2 485 375 OF FAITH BETWEEN EMEMIES. BOOK III. Perseus. Therefore, when plain and open courage can secure CHAP. X. ii^Q 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 afiairs, 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 tlie following section will furnish an answer. § 180. Clan- It is asked, in general, Avhether it be lawful to seduce the destine se- enemy's men, for the purpose of engaging them to transgress duction of ^^l^gjj. duty by an infamous treachery? Here a distinction people!™^ '' ^^^^ ^*3 made between what 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 coniplain 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 theniselvcs are sensible, as they are never heard 48G OP FAITH BETWEEN ENEMIES. 376 to boast of having practised them. Seducing a subject to be- book m. tray his country, engaging a traitor to set fire to a magazine, chap, x. tampering "vvith 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 corrup«l; 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, Avhose 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 Crepio's victory over Yiriatus, because it had been obtained by means of bri- bery. Valerius Maximus asserts that it was stained with a double perfidyf ; and another historian says that the senate did not approve of it.| It is a different thing merely to accept of the offers of a§i8i. Whe- traitor. AYe do not seduce him : and we may take advantage ^}^" ^^^ °^" of his crime, while at the same time we detest it. Fugitives jj.^*jqj. ^^^^ and deserters commit a crime against their sovereign ; yet we be accepted, receive and harbour them by the rights of tvar, 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 intercmptus est; the reasons which render treachery dc- in Q. Scrviho Ca;pione consule, quia is testable, and which authorize us to re- seeleris hujus auctor, inipunitate pro- press it by other means than open niissa, fuit, victoriainque non meruit, force. " Treachery," says he, " is more scd emit. — Lib. ix. cap. C. — Although dreadful than open war, in proportion tliis instance seems to belong to an- as it is more diflicult 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 Ca^pio 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 t Qua; victoria, quia cmpta erat, a any confidence in a man whom he has senatu non probata. Auctor de Viris once found guilty of treachery." — Hist. IlUist. cap. 71. Grau". lib. ii. cap. 3. § Transfugam jure belli recipimus. t Viriati etiain csedes duplicem per- Digest. 1. xli. tit. 1, de adquir. Rer. liJiae accusationcm recepit; in amicis, Dom. leg. 51. 487 377 OF FAITH BETWEEN ENEMIES. BOOK III. CHAP. X. § 182. De- ceitful in- telligence. [ 378 ] to reject their offers ■with detestation. The Romans, in their 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. Deceitful intelligence is that of a man who feigns to betray his own partjT-, with a view of drawing the enemy into a snare. If he does this deliberately, and has himself made the first 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 * Eudcm fide indicatum Pyrrho regi mcdicum vita ejus insidiantcni; eadein Fali-scis vinctum traditum proditorcm libcrorum regis. Tit. Liv. lib. xlii. cap. 47. t When the duke of Parma was en- gaged in the siege of Bergen-op-zoom, two Spanish prisoners, who were con- fined in a fort near the town, attempted to gain over a tavern-keeper, and an English soldier, to betray that fort to the duke. These men, having ac- quainted the governor with the circum- 488 stance, received orders from him to feign acquiescence ; and, accordingly, having made all their arrangements with the duke of Parma for the sur- prisal of the fort, they gave notice of every particular to the governor. He, in consequence, kept himself prepared to give a proper reception to the Spa- niards, who fell into the snare, and lost near three thousand men on the occa- sion. — Grotius, Hist, of the Disturb, in the Netherlands, book i. OF TUE SOVEREIGN WAGING UNJUST WAR. 378 BOOK in. CHAP. XI. CHAP. XL OF THE SOVEnEIGN WHO WAGES AN UNJUST WAR. HE who is eno-ajfcd in war derives all his right from the § ^83. An justice of his cause. The unjust adversary who attacks or ""J"*' ^^'^^ threatens him, — who withholds what belongs to him, — in aj-ightwhat- word, who docs him an injury, — laj's 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 s^'^^ of the rapine, the acts of violence, the ravages, the conflagrations, ^°^'^'''^'o'| are his works and his crimes. He is guilty of a crime against takes 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 r 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 of a father, a son, a husband. 63 489 379 OF THE SOVEREIGN WAGING UNJUST WAR. BOOK HI. But how can he repair so many evils ? Many are in their CHAP. XI. own nature irreparable. And as to those which may be com- § 186. Dif- pensated by an equivalent, where shall the unjust warrior ficulty of re- fi,i(j means to furnish an indemnification for all his acts of vio- pamng t e Iq^qq 9 rjnj^g princc's private property will not be sufficient to injury ne ^ ^ ^ ^ .*' 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, Avould 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 L ^^^ J 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. Whc- The restitution of conquests, of prisoners, and of all pro- ther the na- perty that Still cxists in a recoverable state, admits of no tion an t^e j^^|^^ when the iniustice of the war is acknowleda;ed. The mihtary are .., "^ . ......'='. bound to nation m 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 M'rongfully 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- * Pe Jure Belli et Pads, lib. iii, cap. x, 490 OF THE EFFECTS OF REGULAR WAR. 380 ment. What would be the consequence, if, at every step of book m. 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 Avar 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 Avho 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 ] OP 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 'j*^"^ "'•* the eternal rules of justice : they are so many separate articles "S'Jly t^ of that sacred law, which nature, or the Divine Author of bw^'onia-*^ nature, has prescribed to nations. He alone whom justice ture against and necessity have armed, has a right to make war ; he alone "^''•i other, is empowered to attack his enemy, to deprive him of life, and Avrest from him his goods and possessions. Such is the deci- sion oi the nccesmry 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. Booic III. enemy, and subdue him by force ;" — and to the other, "Every CHAP. XII. act of 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, Avhat 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 that 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 tarv law of ©ffects 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 laAV 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 cook m. just claims by the rules of that law, whose maxims have for ^"-^^- ^"- 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 laAV of nations. The first rule of that law, respecting the subject under § 190. Re- consideration, is, that regular loar, as to its effects, is to Jeg^'^r war, accounted just on both sides. This is absolutely necessary, ^^^^^^ ^j^ ^^ as we have just shown, if people wish to introduce any order, ^g account- any regularity, into so violent an operation as that of arms, ed just on or to set any bounds to the calamities of Avhich it is produc- both 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 efl'ects, 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 ivar. 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 § I9i. between two enemies, ivliatever is jjer'mitted to the one in virtue ^^ hatevens of the state of toar. is also permitted to the other. Accord- P*;"^"^ ° -' ./ 7 r ...•,.■. one party, la ingly, no nation, under pretence of having justice on her side, g^ to the ever complains of the hostilities of her enem}^, 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 betAveen 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. AVe must never forget that this voluntary law of nations, § 192. The which is admitted only through necessity, and with a view to voluntary avoid greater evils (§§ 188, 189), does not, to him who takes ^^^jfl^l^'^ np arms in an unjust cause, give any real right that is capable 2 R 493 383 OF THE VOLUNTARY LAW OF NATIONS. BOOK III. of justifying his conduct and acquitting his conscience, but CHAP. XII. qf^i^y^iy eiititles 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 wages an jg^^^ ^jp nations. The sovereign, therefore, whose arms are not nj .s war. gj^^j^^^j^j-^g^j ^j 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 bo 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 fi-om 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 laiv. 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 OF 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 c hap, xn. happiness. The voluntary law tolerates what cannot be avoided without introducing greater evils. CHAP. XIII. OF ACQUISITIONS BY WAR, AND PARTICULARLY OF CON- chap. xni. QUESTS. IF it be lawful to carry off things belonging to an enemy, § 193. How with a view^ of weakening him (§ IGO), and sometimes of pu- '^^'^ ^^ ^ nishinji: him (§ 1G2), it is no less lawful in a just war to appro- '"^^ •°.,.° ti K'^ /' '> .'■{■., acquisition. l)nate them to our own use, by way ot 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 laAv of nature, which constitutes the neces- sary law of nations, war, founded on justice, is a lawful mode of acquisition. But that sacred law docs not authorize even the acquisitions § 194. Mca- niade in a just war, any farther than as they are approved by sure of the justice, — that is to say, no farther than is requisite to obtain "^_ ^^ complete satisfaction in the degree necessary for accomplish-" 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 jjropert}'' 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. I^vothing 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 OF ACQUISITIONS BY "WAR, ETC. BOOK III. But nations cannot, in their deaHngs with each other, insist CHAP, xi n. Qn 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 luntar)^ law respecting the unreasonableness of her claims, or what she ot nations. ^j^j^|.g ^eccssary 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- 23endently 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 vrar 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 from the moment they come into his power ; and if he sells .^" them to neutral nations, the former proprietor is not entitled (168) " to claim them. But such things must be actually and truly (16S) See further, as to the effect of capture, as to ^novdbles and immovables, and the doctrine of posthminium, and the jirinciple on which it is in general founded, post, 39iJ, §§ 204, 205 ; and the other authorities and modern deci- sions, Marten's L. N. 290—293; 1 Chitty's Commercial Law, 414 — 435 ; and Id. Index, tit. Posllimininm. 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 whicii 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. 414, § 34. With respect to mnrilime captures, a more absolute and certain species of possession has been required. In the case of Flad Oycn, 1 Rob. Rep. 1 34 ; Atcheson's Rep. 8, n. 9 ; and 8 Term Rep. 270, in notes. Sir Ww, 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 496 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 prasidia. 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 there-captor. See Goss and Williers, 2 Burr. 683 ; Constant Mary, 3 Rob. Rep. 97 ; The Hidduli, Id. 235 ; Jsdcvcdo 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 Oycn, 1 Rob. Rep. ] 34 ; Havelock v. Rockicuod, 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 vahd and perfect, even though there was no legal con- demnation, for, as observed by Vattel, the right of postliminium no longer OF ACQUISITIONS BY WAR, ETC. 385 in the enemy's power, and carried to a place of safety. Sup- book m. pose a foreigner, coining 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 %yas 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,t 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 diiferent 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'g And see Sir W. Scott's decision on that Com. L. 434 — 6 ; and see Franklin, point, in Schooner Sophie, 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 Cormi\. Blackburnc, Dongl. 648. ^Mil- cases arising between such subjects Icr v. Tlie Resolution, 2 Dall. Rep. 1.} and those of her allies, peculiar niodlfi- In the absence of express stipulations cations of the general law of nations with allies, Sir 117/1. 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 HamUioii V. Mcndes, 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 OF ACQUISITIONS BY WAR, ETC. BOOK III. or to encourage armed vessels to retake merchant ships that !^A^L^"v 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. It 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 •luisition of the property of the enemy who makes himself master of them : immovables, -^^^ -^ j^ ^^ l^ ^j^^ treaty of peace, or the entire submission ——or coil" J v «/ 1 ' quest. (169) ^-nd 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 provincc, till the sovereign from whom it was taken them va- ^^^^ 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. posl, chap. xiv. ; and the case of Bredes (169) See further as to postliminium, Liist, 5 Rob. Rep. 233 — 251. — C. 498 OF ACQUISITIONS T.Y WAR, ETC. 387 tinues, — while the sovereign has 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, Avho takes a town or province from his§i9... Con- enemy, cannot justly acquire over it any other rights than ditions on such as belonged to the soverei";n afrainst whom he has taken f,^''"' 1 • . . QUcrGutown up arms. War authorizes him to possess himself of what jg acquired, 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, jjriviler/es, 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 tlie conqueror. Thenceforward united with the new state to Avhicli 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 III. the supreme council or the general assembly of the states, be CHAP, xiii. 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 Avar ; 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 tvliat manner can tlie victor treat it, without trans- Ivm ^''^^^' guessing the 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 Avriters, 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 Cowpcr, 205 ; and conquered by the British, or any other Fubrigas 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- conqucrcd 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 arc universally to be regarded in 639, 640 ; 1 Bla. Com. 102—3. As that light, and not as enemies or ahens. to the application of the laws of Eng- Elphinstone v. Bedrecchund, 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 OF ACQUISITIONS BY WAR, ETC. 388 CIlAf. XIII her incapable of doing mischief with the same ease in future, book m But, for the attainment of these different objects, he is to 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 neio 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 laivs 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 ilominum et servuni nulla amicitia est ; ctiam in pace, belli tamen jura servantur. — Q. Curt. lib. vii. cap. viii. 501 389 OF ACQUISITIONS BY WAR, ETC. BOOK III. Should it be said, that in such a case there may be peace, and citAr. XIII. a kind 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 aftected to you? — treat it as a father, as a true sovereign. I am charmed with the generous ansAver recorded of an ambassador from Priver- num. Being introduced to the Koman senate, he was asked by the consul — " If Ave shoAv you clemency, Avhat dependence can Ave have on the peace you are come to sue for?" "If (replied the ambassador) you grant it on reasonable condi- tions, it Avill be safe and permanent : otherAvise, it will not last long." Some took oifence at the boldness of this speech ; but the more sensible part of the senate approved of the Privcr- nian's ansAver, deeming it the proper language of a man and a freeman. " Can it be imagined (said those Avise senators) that any nation, or even any individual, Avill longer continue in an irksome and disagreeable condition, than Avhile com- pelled to submit to it ? If those to Avhom you give peaco receive it voluntarily, it may be relied on: Avhat fidelity can you expect from those Avhom you Avish to reduce to slavery ?"f * Montesquieu, in his Spirit of rcmittimus vobis, qualcm nos paeem Laws. voliiscum liabituros .speremus? Si bo- ■{■ Quid, si pocnam (inquit consul) nam dederitis, inquit, et fidam et pcr- 502 OF ACQUISITIONS BY WAR, ETC. 890 "The most secure dominion," said Camillus, "is that which book m. is acceptable to those over Avhom 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, Avhich 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, A''ictory 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 Cliina : 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 oivn 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 {^""^"^i^.t" 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 pctuam; si malain, hauJ diuturnam. esse fiJain, ubi voluntarii pacati sint; Tuni vcro minari, na: id amhig^ue Pri- ncquc eo loco, ubi sorvitutem esse velint, vcrnatcm, quiiiam, et Hits vocibus ad fuloni sporandam esse. — Tit. Liv. lib. rebellandum iitcitari pacalos pnpulos. viii. cap. xxi. Pars melior senatiis ad niciiora re- * Certe id firniissimum longe impe- sponsa trahere, et dicere viri et libori rium est, quoobcdieutes gaudcnt. — Tit. vocem auditam : an credi posse uUum Liv. Hb. viii. cap. xiii. populum, aut Iioininein dcnique, in ea (ITl) Jlnle, 365, s. 164, and note conditione cujus eum paMiiteat, iliutius (165). quam necesse sit, mausurum ! ibi paccm 503 391 OF ACQUISITIONS BY WAR, ETC. BOOK III. CHAP. XIII. §203. Whe- ther we are to set at li- berty a people whom the enemy had unjustly conquered. [ 392 ] resentment ? Does he not involve her in the war ? And , 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.(171) It has been observed (§ 196) that we may be obliged, if not externally, yet in conscience, and by the laws of equity, to restore to a third party the booty we have recovered out of the hands of an enemy who had taken it from him in an unjust Avar. The obligation is more certain and more extensive, with regard to a people whom our enemy had unjustly oppressed. For a people thus spoiled of their liberty, never renounce the hope of recovering it. If they have not voluntarily incorpo- 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) Jinie, 365, s. 164, and note (165). * Histoire de la Confederation Hcl- v(;tiquc, par M. de Watteville, liv. iii. under the year 1351. (172) As nations are independent of each other, and acknowledge no supe- rior (jinle^ in several places), there is, unfortunately, no sovereign power among nations to uphold or enforce the international law ; no tribunal to which the oppressed can appeal, as of right, against the oppressor ; and, con- sequently, if either nation refuse to give effect to the established principles of international law, the only redress is by resorting to arms, and enforcing the performance of the national obliga- 504 tion ; and this is the principle of just war. So, there is no regular inter- national or even municipal court to adjudicate upon questions of lawful capture or prize. And in Great Britain, no municipal court, whether of common law or equity, can take cognizance of any questions arising out of hostile seiz- ure ; nor can any question respecting the infraction of treaties be direilly agi- tated before courts of laiu, any more than questions respecting booty ac- quired in a continental inland war. In general, in all states, this is a juris- diction assumed only by the sovereign, in whom the right or power of declaring war and peace, and modifying their terms, is vested, excepting in some cases OF THE RIGHT OF POSTLIMINIUM. 392 BOOK III. CHAP. XIV. CHAR 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 icing has tliouglit fit to act vvitli 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. Bcdreedmnd, Knapp's Rep. Privy Coun- cil, 316 to 361; Lc Caux v. Eden, Dougl. 594 ; Htll v. Rcardou, 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 not flagrante, yet nondum cessante hello, regard being had both to the time, the place, and the person ; and, consequently, that the municipal court had 710 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 postlimini- um. provisional government of a recent- justice were then sitting in it, under 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, in England, that the seizure having been made flagrante ct nondum cessante bello, must be regarded in the light of a hostile seizure, and that a municipal court had no jurisdiction on the sub- ject ; {Elphiiislonc v. Bedreechund, Knapp's Rep. 316 to 361 ; and see }{Ul v. Rear don, 2 Sim. & Stu. 431 ; but which on one point, respecting a trust, was afterwards overruled in Chancery ; /'/. 2 Russ. 608 ;) and per Lord Tcnlerdcn — " We think the proper character of the transaction was that of a hostile seizure, made, if 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. Mvocatc-General of Bombay v. Amer- chuncl, Knapp's Rep. 329, note ; El- phinstone y. Bedreechund, Knapp's Rep. 357. As the capture, in general, belongs to the sovereign of the state (although, by municipal regulations, tlie actual captors may acquire some subordinate rights), it also follows that no British subject can maintain an action against the captor. Caiix v. Eden, 2 Dougl. 573. In a state resultins from a state (173) See, in general. 1 Chitty's Commercial Law, 430 to 435; Id. Index, tit Postliminium. — C 64 2 8 506 392 OF THE RIGHT OF POSTLIMINIUM. this rijifht. BOOK III. former state, on coming again into the power of the nation CHAP. XIV. to T\-hich they belonged. (174) §205. Foun- ^^^^ Sovereign is bound to protect the persons and dation of propertj of his subjects, and to defend them against the enemy. When, therefore, a subject, or any part of his property, has fallen into the enemy'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 hiw. Caux V. Eden, 2 Dougl. 573 ; Elphin- stone V. Bedrcerhund, Knapp's Rep. 357. If an EngUsh naval commander seize any movable as enemies' pro- perty, that turns out clearly to be British property, he forleits 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 sup[)osition 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 l)y his majesty, and i)y 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. Rodticij, they arc cases of rare occurrence. Elphinstone v. Bcdreerhund, Knaj)p's Rep. 340, 357-8 ; Caux v. Edc», 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 betv^'een the two countries. It was held, however, that these conventions and treaties, and the act for carrying the same into eilect, 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. lieardon, 2 Russell's Rep. 609, overruling S. C. in 2 Sim. 6c 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 allected 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 RIGUT OF POSTLIMINIUM. 392 in a word, to replace every thing on the same footing on book hi. ■which it stood previous to tlie enemy's capture. chap, xit. The justice or injustice of tlie 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, bo, 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. iS^either 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 arc 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^'^''-^''t'^.'"°"e making but one body with us. Therefore, when persons or /'l-s^-!''*^*" 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 rigiit, 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 tlie 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 ukscnie of treaty, see Sunla Cruz, li.\ed bv treaty between allien. Id. 1 Kob. Kep. 49 ; ante, 385, n. (168). ibni.—C. 507 393 OF THE RIGHT OF POSTLIMINIUM. BOOK HI. 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 neutral Countries : for, when a nation chooses to remain neutrak^na- j^g^^^^. jj^ r^^ ^y^^y.^ gj^g jg ^Qund 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 ^j^g y-[g\i^ of postliminium ; and there is no intrinsic reason r^'thls^ ° ^^^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 difhculty 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 jjlace of safetij, 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) A.S to movables and ship.s, * See several instances in Grotius, ante, 384, n. — C. book iii. ch. xvi. § 2. 508 OF THE RIGHT OF FOSTLIMINIUM. 394 the Romans, indeed, slaves Avcre not treated like other book m. movable property : they, by the right of postliminium, '^"^''- -'^'^"- were restored to their masters, even Avhen 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 h^'^^^J^^'^^"'- sworn or promised allegiance to him, — cannot of themselves cannot re- 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''™i">^™' prisoners, who had surrendered to the enemy, he recovers ^ all his former rights over them, and is bound to re-establish §~^i- J^^y them in theiv jjrist in e condition (§ 205). In this case, they ^J^^^J' ^j^^^^ 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 ijuestion 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 piD'pose of And he who, during the whole war, sellling, 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 sec 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 2 s 2 509 395 OF THE RIGHT OP POSTLIMINIUM. BOOK III. When a town, reduced by the enemy's arms, is retaken by CHA P. XIV. those of her own sovereign, she is, as we have above seen, § 212. 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- right ex- covers such part of her property as had been alienated by their pro- ^^® enemy while he kept her in subjection. In the first place, perty alien- we are to make a distinction between viovahle 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 hy a treaty of peace, or by the entire submission or destruction of the state to tvliich 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 hy 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 sura due from them to the Thebans (see § 77), he was so abso- lutely master of tlic 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. § vi. 610 OF THE TvIGHT OF POSTLIMINIUM. 396 to dispose of his prisoner's property, unless the prisoner has book m. it about him. When a nation, a people, a state, has been entirely sub- § 213. Whe- dued, it is asked whether a revolution can entitle them to the thcra na- right of postliminium. In order justly to answer this ques- tionthathas tion, there must again be a distinction of cases. K that J|^°J* *^"J^^_ conquered state has not yet acquiesced in her new subjection, juedcLcn- has not voluntarily submitted, and has only ceased to resist joy 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, — '^'"'"• such a people arc 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 subsetjuent 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- aide 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 has 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 arc 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, Avith 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 511 897 OF THE RIGHT OF POSTLIMINIUM. BOOK III. by Philip II. king of Spain, under pretence of an hereditary CHAP. xiY. 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 hj of postlimi- ^]^Q treaty of peace, are certain!)/ entitled to the right of post- what is re- ^^'^^inium : 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 Avhatevcr is ceded to the enemy by a treaty of peace, for things -g ^ruly and completely alienated. It has no longer any enemy. claim to the right of postliminium, unless the treaty of peace be broken and cancelled. § 216. The ^xi^ as things not mentioned in the treaty of peace re- nghtof post- ^r^\^ jj-^ ^]^e condition in which they happen to be at the does not ex- ^^'^^ 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 in ^^q^ to be made here in favour of prisoners of war. Their orce orpri- gQygj.gig^ jg 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 Avhen 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 Avar 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 arc, Avithout any lawful rea- arefrec even son, detained after the conclusion of peace, become imme- by escapmg ^^^^^-^^ fj.gg ^r^cn, oncc escaped from captivity, they have into a neu- "^ ■, \ i n ^.*'' ixv^ tral country, even reached a neutral country : tor, enemies are not to De 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 docs obtain 512 OF THE RIGHT OF POSTLIMINIUM. 397 among nations who do not admit and authorize the practice hook m. of enslaving prisoners of Avar. cnAP. xiv. It is sufTicicntly evident from the premises, that prisoners ? 219. How arc to bo considered as citizens who may one day return to ^^^'^ '"'"'^.^ their country : and, when they do return, it is the duty of 1^" ° V^'^' • 1 T 1 1 • 1 ■ /• T • lions 01 pn- the sovereign to rc-cstabhsh them in their lormer condition, soners sub- Hcnco 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 ^^^'^^^ ^^ * nothing in the state of captivity which can in this latter re- ^yar""*"^ ° 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 tics, or have ordained that they should continue "'^°°' 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 homo, 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 g"^f>t'o»s postliminium: we content ourselves with observing that such p'^^^^j^j^j"^ local regulations are obligatory on the subjects of the state nium, esta- alone, and do not affect foreigners. Neither do we here ex- biished by amine what has been settled on that head by treaties : those ^^'^^^^ "'' particular compacts establish merely a conventional right, 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, Avith respect to nations with Avhich Rome had neither connections of friend- ship, rights of hospitality, nor alliance.* This was because those nations Avere, as avo have already observed, considered in some measure as enemies. The prevalence of milder man- ners has almost everyAvhcre abolished that remnant of bar- barism. * Digest, lib. xlix. de C ijit. ot Postlim. leg. v. g ii. 05 513 399 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- -yyijiQ^j not onlj clecicles whether it be proper to undertake the out th^e^o- ' ^^^^'' ^^^ ^° declare it, but likewise directs all its operations, vereign's as circumstanccs of the utmost importance to the safety of order. the State. Subjects, therefore, cannot of themselves take any steps in this affair ; 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. g 221. That The sovereign's order, which commands acts of hostility, order may and gives a right to commit them, is either general or parti- be general q^\.^j.^ fj[}^g declaration of Avar, which enjoins the subjects at !![,._ 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. z 225. -^^^^ though an order from the sovereign be necessary to Source of authorize the subjects to make war, that necessity wholly re- the neces- guUs from the laws essential to every political society, and sity of such j^q|. fj.Qj^^ any 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. ■1 226. AVhy ^^ "^^'^ confinc our views to the law of nations, considered in the law of itsclf, — when once two nations are engaged in war, all the nations subjccts of the ouc may commit hostilities against those of Idrtod^tbTs *^^ other, and do them all the mischief authorized by the m\c. ° ^^ state of war. But, should two nations thus encounter each other Avith the collective Aveighfof their Avhole force, the war would become much more bloody and destructiA'e, and could hardly be terminated otlicrwise than by the utter extinction of one of the parties. The examples of ancient Avars abun- dantly prove the truth of this assertion to any man who will for a moment recall to mind the first Avars Avaged by Rome 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 ^'"^''" ^^" 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 g 227. Pre- retained, by which the subjects in general are ordered, not ^'^^ mean- only to break off all intercourse with the enemy, (179) but ^"|° '® 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 (ITU); 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- § 228. What ably suppose the sovereign's will, and act in consequence of private pcr- his tacit command. Thus, althou2;h the operations of war are ^°"f ™Y uiiclcrtuKC by custom generally confined to the troops, if the inhabitants presuming 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 States v. Barker, Paino's C. C. Rep. commercial intercourse with an enemy, 157.} Thus, Great Britain permitted or even to pay him a just deht, during commercial intercourse with some of war. Grotius, b. iii. c. iv. § 8; Byn- her plantations, whilst under capture kershoek, b. i. 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; Wilhon v. Patteson, 7 Taunt. 439; but these exceptions are in general :{ Meriv. R. 469 ; 2 Ves. «S5 Bea. 323 ; carried on under orders in council and { Schole field v. Eichclberger, 7 Pet S. C. licenses.— C. j See The William Penn, Rep. 586. } To this general rule there 3 Wash. C. C. Rep. 4848. } are sometimes exceptions. { The U. 515 400 OP THE RIGHT OF BOOK HI. he is at war may not be willing to venture on sucli bold under- CHAP. ^^- 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. § 229. Pri- Persons fitting out private ships to cruise against the enemy vateers. acquire the property of whatever captures they make, as a r 401 1 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 Avar, which indeed they have not always an opportunity of being thoroughly acquainted with, and respecting Avhich 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, iiintocTs. j^^^i |.j-^^^g 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 OAvn free choice. ^ 2.SI. What Soldiers can undertake nothing without the express or tacit soidier.s .and command of their officers. To obey and execute, is their subalterns province, — not to act at their own discretion : they are only in'iv do • instruments in the hands of their commanders. Let it be 51G 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 t-nAP. xv. 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, Avith 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 Avar, an enterprise which wears a very advantageous appearance, and promises almost certain success, may nevertheless be attended Avith fatal consequences. It [ 402 ] would be dangerous, in such a case, to leave the decision to the judgment of men in subordinate stations, Avho are not acquainted Avith all the vicAVS 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 OAvn discretion. Fighting Avithout orders is almost ahvays considered, in a military man, as fighting contrary to orders, or contrar}^ to prohibition. There is, therefore, hardly any case, except that of self-defence, in A\'hicli the soldiers and inferior officers may act Avithout 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 Avithout orders and Avithout officers, — possessed themseh'es of a battery, spiked a part of the cannon, and brought aAvay the remainder into the city. The Roman severity Avould have punished those men Avith death. The famous example of the consul Manlius is Avell knoAvn, avIio, notAvithstanding the victory gained by his son, caused capital punishment to be inflicted on him for having engaged the enemy Avithout 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 roAvard for their courage and alacrity. At another famous siege in the same Avar, that of Coni, the private men of some battalions that Avere stationed in the fosses, made, of their own accord, during the absence of their officers, a vigorous sortie, Avhich AA'as attended Avith success. Baron Lcutrum Avas obliged to pardon their transgression, lest he should damp an ardour on Avhich 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 RIGHT OF PRIVATE PERSONS IN WAR. BOOK III. capital punishment on some officers of his army, who had, CHAP. XV. ^i^;)^o^t; 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, ^^c* ^ 232. Who- Is the state bound to indemnify individuals for the damages ther the |.|^gy ii^ye sustained in war ? We may learn from Grotius bound^to in- ^^'^^ autliors are divided on this question. f The damages demuify the Under Consideration are to be distinguished into two kinds, — subjects for thosc douc by the state itself or the sovereign, and those done damages ^j ^]^q enemy. Of the first kind, some are done deliberately sustained in' ii o ,• i n ^J x. war (180) ^^^ "^^ ^^^7 ^* precaution, as, wiien a held, 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 Avhcn 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 are 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 full. The sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it : but oio 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 Avhom 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. -wiii. ^ i. n. 6. c. xxxi. was passed. See discussions (180) On the conclusion of the late in ///// v. Ecardun, 2 Russell's Rep, war between Great Britain and France, COS. — C. it was stipulated that the latter shoidd ■)" 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. 518 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 afi'ord any ground of action asrainst him.* CHAP. XVI. '- '^^'^ -' OF VARIOUS CONVENTIONS MADE DURING THE COURSE OF chap. xvi. THE WAR. WAR would become too cruel and destructive, were all ? 233. intercourse between enemies absolutely broken off. Accord- '^'^^°<^ ^^^ ing to the observation of Grotius,t there still subsists aj"®^^"^'"' friendly intercourse in war, as Virgil| 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 (ISO), 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 bavin" most efficacious measures for the pro- described the destructive consequences tection of his subjects engaged in war, of the Spanish barbarity, they e.xhortcd 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. Ho for- to which it had given birth. — Edit. A. D. bade the peasant,^, under pain of death, 1797. to pay any contributions with a view to f Lib. iii. cap. xxi. ^ i. purchase an immunity from pillage and f Belli commercia conflagration; (1S3) and, under the Turnus same penalty, prohibited the use of Sustulit ista prior. — iEn. x. 532. safeguards and protections. In oppo- g Ann. lib. xiv. cap. xxxiii. sition to this barbarous ordinance, the (1S3) 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 III. 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. §23i. Does The truce or suspension of arms does not terminate the not tcrmi- -^y^^j. • [^ Qj-^iy suspcuds its Operations. natc the ^ trucc is either partial or general. By the former, hos- .'.,'- . 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- coasc generally, and in all places, betAveen the belligerent tiai or gone- 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 231). (ic- A general truce, made for many years, differs from a peace nerai truce J^ little clsc than in leaving the question which was the ori- formany gingl grouud 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 2;57. Uy It is necessary to the validity of an agreement, that it be whom thcije made by one who possesses competent powers. Every thing agreements ^j,^^^^ ^^ ^^.^^ -g ^^^^ ^y. |.|,q authority of the sovereign, who Thuie^h ^''"" J^lofie has 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 doAvn 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 ueces- 520 OP VARIOUS CONVENTIONS, ETC. 405- sary for the reasonable and salutary exercise of his functions, book hi. — for every thing Avhich naturally follows from his commission. Z^"*'*- ^^^- Every tiling 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. vVccording 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 tlie 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 tlic authority of the sovereign, who consents to some of them *"5;^ereign's in his own person, and to others through the ministry of his ^"^^ *^?" generals and ollicers. Ilis faith is pledged by such agree- ^-^^j^^ ments, and he is bound to enforce their observance. The truce binds the contracting parties from the moment ^ 239. When of its being concluded, but cannot have the force of a law, the truce with regard to the subjects on both sides, till it has been so- 66 2 T 2 521 406 OF VARIOUS CONVENTIONS, ETC. BOOK in. lemnly proclaimed : and, as an unknown law imposes no obli- """' gation, the truce does not become binding on the subjects CHAP. XVI. begins to be ^j^^il duly notified to them. Hence, if, before they can have obligatory. Q]3|-f^jj;jg(;[ 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 iornorance of its existence, have failed to observe it, are not obliged to off'er an indemnification, any more than their sove- reign, who Avas 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 liad 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 Avell as in their treaties of peace, to assign diff"erent periods for the cessation of hostilities, according to the situation and distance of places. § 240. Pub- Since a truce cannot be obligatory on the subjects unless lication of l^nown to them, it must be solemnly published in all the places the truce. ^yi^^yQ [^ [^ intended that it should be observed. § 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 thT'tTuc? public faitli ; 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 sovc- [ 407 ] reigurefusetodojustice, on tlio 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 Jij^ order, or even with his simple consent, commits any act the truco. contrary 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. XVI. diately broken on the first infraction. If the party offending ? 243. sti- submits to the penalty, and repairs the damage, the truce puiation of still subsists, and the offended party has nothing further to ^„^';°^^ ^j^^ claim. But, if an alternative has been agreed on, viz. that, infractor. in case of an infraction, the delinfiuent 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 I 244. Time specified, in order to prevent all doubt or dispute respecting "^ '^® *™^°- the period of its commencement, and that of its expiration. The French language, extremely clear and precise, for those Avho know hoAv to use it with propriety, furnishes expressions which bid defiance to the most subtle chicanery. The words '•'• hiduuvelij' and '•'• excluuvdij' 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 loth of April," it might be disputed whether those [ 408 ] two days, mentioned as the initial and final terms of the truce, Avere 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, tliis 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 " untiV such a day 523 408 OF VARIOUS CONVENTIONS, ETC. BOOK III. '■^inclusively,'^ the word '■'until" is not necessarily exclusive, CHAP. XVI. according 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, whei it may be done by the addi- tion of a single word. In national compacts, the Ww.d '■'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 diflcrent 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 thi-oughout 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 didy ])ublished with respect to them (Ibid.) ; and it begins to take effect only from the moment of the first pub- lication, unless otherAvise settled by the terms of the agree- ment. ? 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 truce, what respecting the acts wbich may be termed hostile, the general or'not"dur- "^^^ ^■'*' ^'''^^5 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 :— pci^ce. Thus, a truce does not deprive a sovereign of the may cuTat^ liberty of levying soldiers, assembling an army in his own home what dominions, marching troops within the country, and even they have a calling in auxiliaries, or repairing the fortifications of a town 524 OF VARIOUS CONVENTIONS, ETC. 409 wliich is not actually besieged. As he has a riglit to do all nor.K m. these things in time of peace, the truce does not tie up his '"•^''' ^^''- hands. Can it ])e supposed that, by such a compact, he meant |"'«''/ t" '^'> to debar himself from executing things -which the continuation'" ^""'^ "^ f 1 • 1 • • 11 1 • ('• 1-0 pence. 01 hostilities could not prevent him irom doing : But to take advantage of the cessation of arms in order to ^ 24G. 2J execute without danger certain things which are prejudicial i^"'" :— Not to the enemy, and which could not have been safely under- *° ''^''^ ''^■i taken during the continuance of hostilities, is circumventing {j'^g j^^pg ij, and deceiving the enemy with Avhom 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. ^''"^'^ ^'^y® The truce concluded between the governor of a town and the general besieging it, deprives both of the liberty of con-.j'j,g(J^gg_ "' tinuing their works. With regard to the latter, this is mani- continuing fest, — his works being acts of liostility. But neither can the the works governor, on his part, avail himself of the armistice, for the ^^ ^ ^":^f • purpose of repairing the breaches or erecting new fortifica- 1^^^^^^.}^^^'. " 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 wore 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 Avas 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 emploj-cd within, in clearing away the rubbish -with which the blowing up of a ma- gazine had filled the citiidel, 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 § 248. or the terms of the capitulation or of waiting for the orders of introducing the respective sovereigns, the besieged governor cannot make ^"<^<^«'"'"3. 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 III. advantage of the armistice for the purpose of deceiving the CHAP. X YL gj-jgj-^^y — ^ conduct which is inconsistent Avith 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. Di;^- But this is not to be extended to a suspension of arms tinetion of a agreed on for some 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. § 250. Re- Likewise, if an army in a bad position proposes and con- treat of an ciiiijes an armistice for the purpose of burying the dead after rsuspen-'"^ a battle, it cannot pretend, during the suspension of arms, to sion of hos- extricate itself from its disadvantageous situation, and to tiiities. 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 or VARIOUS CONVENTIONS, ETC. 411 Now, as - .j.^i^gj^ j^jjj delivered by his own party, he owes nothing. I cufd before '^ ini- he h;is re- hcre cviuentl}^ suppose that the contract tor his ransom was ceiveii hi.-; li- not Completed, and that the prisoner had not acknowledged ^"^'it.v- 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. Whe- The property of a prisoner's effects is not vested in the ther die captor, cxccpt SO far as he seizes on those effects at the time a prrsoner ^^ ^^'^^ Capture. Of this there is no doubt, in these modern has fuund timcs, whon 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- gQQ(^ig ([qq^ not, without somc Other reason, pass to the mas- ' ter of the slave. There is notliing 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 or t oic- pj.Qgm.Q r^^ prisoner's enlaro;oment, he ou2;ht to be released the lease of a '■ ,i . >^ ' i° i i i •,. i prisoner. moment the prisoner dies ; and, on the other hand, it 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. III. CHAP. XVIII. CHAP. XVIII. OF CIVIL LAW. IT is a question very much debated, whether a sovereign ? 2S7. Foun- is bound to observe the common laws of war towards rebel- '^"''""/^f'^^o lious subjects who have openly taken up arms against him T^"^^^^'^'""^ A flatterer, or a prince of a cruel and arbitrary disposition, against the will immediately pronounce that the laws of Avar 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 Avelfarc of the nation, of procuring her greatest happiness, of maintaining order, justice, and peace within her boundaries (Book I. Chap. lY). Secondly, we must distinguish the nature and degree of the dilTorent 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 ^2ss. Who take up arms against the ruler of the society, whether their ai-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 Avho as- ? 2S9. Popu- scmble in a tumultuous manner, and refuse to listen to the ^"'' '^^.'"'^'^" voice of their superiors, whether the design of the assembled ,.'^" ,i„n_^,,,! multitude be levelled against the superiors themselves, orjition. 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 Avho 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 §290. How crimes, even when arising from just causes of complaint. ^^^ ^o^'*- 530 422 OF CIVIL WAR. BOOK HI. For violent measures are forbidden in civil society : the in- CHAP. xvm. j^pg(^{ individuals should apply to the magistrate for redress ; reign is to and if they do not obtain justice from that quarter, they may suppress i-^j their complaints at the foot of the throne. Every citi- ®™' zen should even patiently endure .evils, which are not insup- portable, rather than disturb the public peace. A denial of justice on the part of the sovereign, or affected dela^^^s, can alone excuse the furious transports of a people Avhose 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 j 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 vvill 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 imniortal and unsullied glory of being tlie book ur. father of his people, let him mistrust the selfish suggestions '^-HEiZII!!- of that minister Avho 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 i>- just method of appeasing seditions, is to give the people satis- ^"""'^ '" faction. And if there existed no reasons to justify the insur- ^"^^ "f™ J^ * 1 • 1 1 1 \ promises he rection (a cn-cumstance 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 bc- '■ween 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 welfiire 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 ho 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 remed}^ is to be used Avitli 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 tliis occurs in tbe insurrection at Madrid, in 1766. At transactions which took place after the the requisition of the cortes, the king 2V 5-11 424 OF CIVIL WAR. BOOK III. When a party is formed in a state, who no longer obey the CHAP, xviii. sovereign, and are possessed of sufficient strength to oppose § 292. Civil Y^lxja^ — -or when, in 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 Avar 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 tvar, 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." It is foreign to our purpose in this place to weigh the reasons which may authorize and justify a civil war : we have elsewhere treated of the cases wherein subjects may resist the sovereign (Book I. Chap. IV). Setting, therefore, the justice of the cause wholly out of the question, it only remains for us to consider the maxims which ouo;ht 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, g 293. A civil war produces two inde- pendent parties. revoked the concessions which he had populace, but he suffered the amnesty been obliged to ui.ako to the insurgent to remain in force. 542 OF CIVIL AVAR. 425 and, being unable to come to an agreement, have recourse to book m. CHAP, xviir. arms. This being the case, it is very evident that the common § 294. They laws of war, — those maxims of humanity, moderation, and "'"*' ^ °^' honour, which we have already detailed in the course of this ^'^"^^^ 1 11 Till •• ••! common work, — ought to be observed by both parties ni every civil laws of 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 Avill follow his example ; the Avar Avill 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 knoAvn: the men Avere deliA^ered up to the executioner, and the Avomen to the brutality of the soldiers. What Avas 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 Avho 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 Avar Avherein the prince exposed them to cruel reprisals. Officers who had the liighest 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. WhencA'er, therefore, a numerous bodv of men think they haA^e a right to resist the soA'ereign, and feel themseh^es in a condition to appeal to the sword, the Avar ought to be carried on by the contending parties in the same * The prince of Coude, commander The duke of Alva made it a practice of Louis XIII.'s forces against the re- to condemn to death every prisoner ho formed party, having hanged sixty-four took from the confedci-ates in the Ne- officers whom he had made prisoners therlauds. They, on their part, retali- during the civil win; the Protestants re- ated, and at length compelled him to solved upon retaliation ; and tlie duke respect the law of nations and the rules de Rohan, who commanded them, caused of war in his conduct toward them, an ecjual number of Catholic officers to Grotius, Ann. lib. ii. be hanged. See Memoires de Rohan. 513 426 OF CIVIL WAR. BOOK III. manner as by two different nations : and they ought to leave •^J^^' /^lilL" open the 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 luar. 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.* I 295. The When subjects take up arms without ceasing to acknow- effects of ledge the sovereign, and only for the purpose of obtaining a cu 1 wai CIS- j,g(]j^.ggg Qf ti^gir o-rievances, there are two reasons for observ- tinguished . V r« i i -n- according to I'^g the common laws ot war towards them : — rn-st, 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 Avho 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 XIII. 544 OF CIVIL WAR. 427 But, when a nation becomes divided into two parties ab- book m. solutcly independent, and no longer acknowledging a common <^h-^p- ^^"1- 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- ^^^^ct to be longs not to them to judge between the citizens whom discord "''^®.'J®*^ ^^ has roused to arms, nor between the prince and his subjects : ^l^^^° 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 197.) 69 2v2 545 BOOK IV. OF THE RESTORATION OF PEACE; AND OF EMBASSIES. BOOK IV. CHAP. I. CHAP. I. OF PEACE, AND THE OBLIGATION TO CULTIVATE IT. § 1, AVhat X 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 euiti- Inanity, — who scriously attend to their duty, and are ac- vating It. quainted with their true and substantial interests, — will never ■••■ Nam cum sint duo genera decer- tandi, unum per disceptatiouem, alte- rum per vim, — cumque illud proprium sit hominis, hoc belluarum, — confugi- 546 endum est ad posterius, si uti non licet superiore. Cicero, de OfRc. lib. i. cap. IL OF PEACE, AND THE OBLIGATION TO CULTIVATE IT. 430 seek to promote their own advantage at the expense and de- book rv. triment of other nations : however intent they may be on _S£^£ii:_ 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 so- a double tie. He owes this attention to his people, on whom ^"^|S° ^ war would pour a torrent of evils ; and he owes it in the ^^ jj° 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- ^^ ^^^^ ^^^^' 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, CHAP. I. ^^^^ ^g -^ were, a god upon earth. § 5. Of the But those disturbers of the public peace, — those scourges disturbers pf ^j^g earth, who, fired by a lawless thirst of power, or im- lic * eaee" pelled by the pride and ferocity of their disposition, snatch up arms Avithout justice or reason, and sport "vvith the quiet of mankind and the blood of their subjectSjj — 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^^g ^^ ^ ^^^^, without necessity, and from persevering in it ^e con mu- ^^^^^ ^^^ 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 bo [ 432 ] imprudent to trust either his words or his oaths. In such case, justice allows and prudence requires that Ave should avail ourselves of a successful Avar, and follow up our adA'an- tagcs, till Ave have humbled a dangerous and excessive power, or compelled the enemy to giA^e us sufficient security for the time to come. 548 OF TREATIES OF PEACE. 432 Finally, if the enemy obstinately rejects equitable condi- book rv. tions, he himself forces us to continue our progress till we ^"^^' ^' 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- ^^® '^^'^ "^ tion are entertained, and the conditions are agreed on. Thus ^^^' peace steps in and puts a period to the war. The general and necessary effects of peace are the reconci- ? 8. Gene- liation of enemies and the cessation of hostilities on both ''^^ ^^^"^^^ sides. It restores the two nations to their natural state. ° peace. CHAP. II. TREATIES OF PEACE. (188) WHEN the belligerent powers have agreed to lay down § 9. Defini- their arms, the agreement or contract in which they stipulate tion of a the conditions of peace, and regulate the manner in which it ^^^^^^ °^ is to be restored and supported, is called the treaty of peace. '^^^^^' The same power M'ho has the right of making war, of de- ^ 10. By termining on it, of declaring it, and of directing its opera- whom it tions, has naturally that likewise of making and concluding ^^^ ^° '^°°" the treaty of peace. (189) These two powers are connected*^" ^ ' 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 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, Avith 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 (IS8) Upon the subject of treaties in are collected in Chitty's Commercial general, and their construction, see ante, Law, latter part of vol. 2. — C. book ii. ch. xii. p. 192—274. Whilst (189) .4Hff, 291-2; and see Hoop, 1 examining the sections of A'attel rela- Rob. Rep. 196, Id.: 1 Chitty's Com. L. tive to treaties, it will be found advis- 37S. — 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. '^"■^''- "• - § 265.) A nation that has the free disposal of her domestic aifairs, 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 tlierc 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 tlie con- sent of the nation, he shordd have detained him till the states-general of France had ratified the treaty of Madrid, and Burgundy had acquiesced in it : tlius ho would not have lost the fruits of his victory by an oversight Avhich ap]:)ears very surprising in a prince of his abilities, g 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 of VacT^ ^^'°°^ ^' §§ -*'^' '^^•)' ^^ ^^ ^'^'^ ^^'^'^^^ ^^'^*^- ^^^'^'^- §^ ^'^' ^^•'> 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 OF TREATIES OF PEACE. 433 prince, in order to save the remainder of the state, arc consi- book iv. dered as approved and ratified by the mere silence of the na- ^"'^''' "' 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 wovdd be a vain plea on the part of the people, to say that it w^as only through fear they acquiesced in the abo- lition of the states-general. The fact is, that they did acqui- esce, and thereby sufi"ered 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 Avith each other (Book I. § 2G2), 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 abb6 de Choisi, Hist, de Charles natioual approbation, and tho character V. p. 492. of a hiw of the state. Tho cardinals f Tho renunciation made by Anno who examined this affair by order of of Austria, consort of Louis the Thir- the pope, whom Charles II. had con- toenth, was good and valid, because it suited, paid no regard to Maria Thc- was confirmed by the general assembly resa's renunciation, as not deeming it of the cortes, and registered in all tho of sutBcient force to invalidate the laws offices. The ease was otherwise with of the countrj', and to supersede the that made by Anna Theresa, which established custom. — Memoirs of M. was not sanctioned by those formalities, do 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 ^^^^- "• 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. § 12. How The necessity of making peace authorizes the sovereign to the sove- disposc of the property of individuals ; and the eminent do- dispose of ©vcn, to a Certain degree, dispose of their persons, by virtue what con- of the powcr which he has over all his subjects. But as it is cerns indi- for 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 being a pn- -^^^ ^^ ^-^^ powcr of makinff peace. Thus a kino- cannot make can make ^ 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- clude 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 I. §§ 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 once 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, g 082. 552 OF TREAT] HS OF PEACE. 435 the public welfare ? He docs not, indeed, forfeit his rights ; book iv. but his captivity deprives him of the power of exercising ^^^^' "' them, as he is not in a condition to direct the use of them to its proper and legitimate end. lie 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 efibrts 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 Avelfare. It Avas 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 Rcgulus. 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- ^ ii. -whe- vaded the kingdom, he becomes possessed of all the powers t^f^r peace of government when once the people have submitted to him, '^^.^ ^^ ^'^^^ and, by a voluntary homage, acknowledged him as their ,T1,...!1^ ' .*' i^ 1 1 - USUI per, sovereign. Other states, as havnig 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 Avith * See Tit Liv. Epitom. lib. xviii. and other historians. 70 2 W 553 436 OF TREATIES OF PEACE. BOOK IV. CHAP. II. the treaty of peace. that kingdom, pursuant to their own rights and those of the nation 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^g been Carried on, cannot justly make a peace without in- cluding his allies, — I mean those who have given him assist- ance without directly taking part in the Avar. 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. ?]6. Asso- Sovereigns who have associated in a war, — all those who have directly taken part in it, — are respectively to make their treaties of 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). ? 17. Modi- It frequently happens that two nations, though equally 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 554 ciatos to treat, each for himself. atiou. 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 '^^^^- "• 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. ^ 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 ^"^^^^ ^^^ he has a just title, it would be impossible ever to make a peace, gfurig^" 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 injiu-ies 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 Avhose object was originally lawful : here then are so many wrongs, of Avhich 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 Avould 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, wo 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 war, and to abolish the subject of it. It leaves the contract- CHAP, ? 19- Gene- jj^g parties no right to commit any acts of hostility on account the treatv°of ®^^^®^ of the 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. ^ 20. Am- An amnesty is a perfect oblivion of the past ; and the end nesty, of pcacc 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. ^ 21. Things As cach of the belligerent powers maintains that he has not men- justice on his side, — and as their pretensions are not liable to Jreat*^ '" ^^^ ^^ judged by others (Book III. § 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 in the com- terminated by the treaty. Thus, claims founded on a debt, amnesty."'" "^^ °^ ^"^ ii^j^^iT 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 OP PEACE. 439 the treaty, unless it be expressly extended to the extinction book iv. of every claim whatever. The case is the same with debts P? - ^''' "' 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 oAvners 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, ti"*^^*ies, no less than if they were literally transcribed and included in '"''f '°°^ "^ . , , . - . iinti con- 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 '^ P'*'^' *^*' '*• particularly § 286). CHAP. III. CHAP. III. 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 j^g^gp^*^'"™" that instant all hostilities must cease, unless a particular day * It is an essential point to neglect to the Grand Pensionary Do Witt, in none of the formalities which can in- 1662, thus observes — "The articles sure the execution of tlio treaty, and and conditions of this alliance con- prevent new disputes. Accordingly, tain various matters of different na- caro must be taken to have it duly turcs, the majority of which fall under recorded in all the proper offices and the cognisance of the privy council, — courts. M. Van Beuniugen, writing several, under that of the admiralty, 2 w 2 557 440 OF EXECUTION OF THE BOOK IT. has been specified for the commencement of the peace. But ^"^^' '"' 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, g 25. Pubii- j^n(j in order to prevent those unhappy accidents, by which cation of tho j^^^j^y innocent 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. ^ 26. Time When no particular time has been assigned for the exeou- of the exe- ^j^j^ ^f ^j^g 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 tho states-general rc- bunals, the parliaments, &c. — es- quired that the treaty concluded the cheatago, for instance, which comes same year should be recorded in all tho under the cognisance of the chambre parliaments of tho kingdom. See the des comptcs [c.echeqwer]. Thus, tho king's reply on this subject, in his letter treaty must bo recorded in all those to the Count D'Estrades, page 399. — different places." This advice was Edit. A.d, 1797. 558 cution. TREATY 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- ^"^''' '"" mittcd ; for nobody is bound to perform impossibilities. The ? ^''- ^ ^*^^' obstacle, -when it does not arise from any fault on the side of |^" ad^k^-^ 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 promisor is absolved ? 28. The from his promise, when, after he has made his preparations P'"°'"'*'^ '* for performing it according to the tenor of his engagement, he j_j"g partjMo is prevented from fulfilling it, by the party himself to whom ,vhom it w.i« it was made. The promisee is deemed to dispense with the made has fulfilment of a promise of which he himself obstructs the exe- ^'^^eif iim- cution. Let us therefore add, that if he who had promised performam-e a thing by a treaty of peace was ready to perform it at the of 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 promisor 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 promisor [ 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 nation of already promised, but not yet paid, are a debt actually due;f.*^"^" "' 1 "^ 1 1 1 • • 1 -li - tions. and, as such, the payment may be insisted on. xJut, m 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 ? ao. Pro- by a treaty of peace are due from the instant appointed for ^"''ts of the carrying it into execution : and if no particular period has ^ '" V*^" kbeen assigned, they arc due from the moment when the re- ceded. stitution of the thin£rs themselves was agreed to : but those ■which Avere already received or become payable before the conclusion of the peace, are not comprised in the restitution ; 559 442 OF EXECUTION OF THE BOOK IT. for the fruits and profits belong to the owner of the soil ; and, CHAP. HI. jj^ ^Y\e 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 jjg restored in the same state in which they were when taken : are to o re- ^^j, the-word "restitution" naturally implies that every thinac stored. iiii ^ i ' • r T • mi ^ ■ should be replaced m its lormer condition. Thus, the resti- tution of a thing is to be accompanied Avith 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 Boll. Civ. lib. v., quoted by Orotius, lib. ii. cap. 20, g 22. 560 TREATY OF PEACE. 443 such pitiful finesse is to the faith of treaties, we have already book iv. observed (Book II. § 231) : it is a disparagement of that can- '^"^^' "'" 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 ? 22. The in a treaty, though worded with the greatest care and the ^°^''''^^®*'^" most honourable intentions, — and to obviate every doubt treaty 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 be against interpretation. We have already devoted an entire chapter ^^'^ *"i^*^"°'" to the exposition of those important rules :* wherefore, instead 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 w"hich 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. Xames stood according to the usage prevailing at the time among °^ ''^^f^ skilful and intelligent men : for it is not to be presumed that ^''"^ "^^' 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. r ^^4 -i 3. The treaty of peace naturally and of itself relates only g u. Resto- to the war which it terminates. It is, therefore, in such re-riitionnotto lation only, that its vague clauses are to be understood. ^" "°'^«'"- Thus, the simple stipulation of restoring things to their ^ijo^.e °jjo former condition docs not relate to changes which have not have voiun- been occasioned by the war itself: consequently, this general taiiiy given clause cannot oblige either of the parties to s^et at liberty a tii<>mseives free people who have voluntarily given themselves up to him "^" 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 L (190) As to the construction of treaties in general, see Book II. Chap. XVII. I 262, ante, 244.— C. «■ Book II. Chap. XVII. ante, 244—274 n 561 444 OF OBSERVANCE AND BREACH BOOK IV, CHAP. Ill § 202) — if such people, during the course of the war, have -- voUmtarily, 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 Avho 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. ^ 35. The treaty of peace binds the nation and succes- sors. g 36. It is to be faith- fully ob- served. [445] ? 37. The plea of fear or force do)s not dis- CHAP. IV. OF THE OBSERVANCE AND BREACH OF THE TREATY OF PEACE. THE treaty of peace concluded by a lawful power is un- doubtedly a public treaty, and obligatory on the whole na- tion (Book II. § 154). It is likewise, by its nature, a real treaty ; for if its duration had been limited to the life of the 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 stropgly 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. After all we have said on the faith of treaties and the in- dispensable obligation which they impose, it would be super- 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- fallibly rekindles the flames of war ; — all which considerations give additional force to the obligation of keeping our faith, and punctually fulfilling our promises. We cannot claim a dispensation from the observance of a treaty of peace, by alleging that it was extorted from us by fear, or wrested from us by force. In the first place, were 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- ^^^^' '^' such a pretext, as a cloak for the faithless violation of them. 1"^°^® "^^^^ To authorize such an evasion would be a direct attack on the common safety and welfare of nations : — the maxim would 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 inunense tribute, and obeying the commands of the ^ing 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. [ 446 ] 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 alloAved to claim the benefit of them? Even 56;; 446 OF OBSERVANCE AND BREACH BOOK IV. CHAP. IV. ? 3S. How many ways a troaty of- peace may be broken. g39. By a condiTot 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 advantaijeous under the then existins: 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 aifairs. 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. Noav, 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 su,bject 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 504 OF THE TREATY OP PEACE. 446 of arms. The rupture proceeds from him who, by his ob- book iv. stinatc injustice, renders this method necessary. But here it is proper to recall to mind what we have more is no breach than once observed, — namely, that nations acknowledge no "^ ^'"'^ ^'■^''^^y common judge on earth, — that they cannot mutually con-" P^'^'^''- damn 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 ? 4i- A sub- up her right of contracting alliances and assisting her friends, ^f fi"<^°t ai- it is likewise no breach of the treaty of peace to form a sub- an'^g'^nemy i< sequent alliance with the enemies of the party with whom she likewise "uo has concluded such treaty, — to join them, to espouse their i^reach of quarrel, and unite her arms with theirs, — unless the treaty ^^® treaty, 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- § ^-- "^^'^y a tween a new war and the breach of an existing treaty of ^'stmction peace, because the rights acquired by such treaty still subsist, l^^^g be notwithstanding the new war : whereas they are annulled by tween a the rupture of the treaty on which they were founded. It is war and a true, indeed, that the party who had granted those rights breach of does not fail to obstruct the exercise of them during the course * ^ ^'^^'-^^y- 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 new 448 OF OBSERVANCE AND BREACH BOOK IT. cessions : a little equality in our successes entitles us to in- CHAP. IV. g^g^ Q^ ^Yie 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 Avhere 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."* ? 43. Justi- Justifiable self-defence is no breach of the treaty of peace, fiabie self- It is a natural right which we cannot renounce : and, in pro- defence is mising to live in peace, we only promise not to attack without no reac ^auso, and to abstain from injuries and violence. But there ty. are two modes oi deiendmg 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. 566 OF THE TREATY OF PEACE. 448 repelled by force. But, if there is question of obtaining book iv. reparation of the damage done, together with adequate satis- ^"'^''' ^^' 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 l for instance, if a band of unknoAvn 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- '^^ rupture rable from his ; and they are entitled, equally with him, to ^j. ^yhqs. 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 ^^'^'^^J i^ • rru 1 xi i • • • i. A -i-i broken by reqmres. Ihus, every procedure that is inconsistent with ^j^^j. j^ ^^^^^ the rules of friendship is a violation of a treaty of peace trai-y to its which has been concluded under the express condition of particular thenceforward living in amity and good understanding. To ^''ture. 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 III. c. 3, as to what are just causes of war. — C. 567 449 OP OBSERVANCE AND BREACH BOOK IV. pense with our observance of the common duties of humanity ^°^^- ^^- ^Yhich 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 o^^any arti- ^^ ^-^iq most decisivo, 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. § 47. The But it is asked whether the violation of a single article of violation of i\yQ treaty can operate a total rupture of it ? Some writers,* ticl°breaks ''^^^^ drawing a distinction between the articles that are con- the whole HGCted 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;"t and 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). ?> 48. Whe- It is equally nugatory to attempt making a distinction in ther a dis- this instance between the articles of greater and those of tinction may iggser importance. According to strict justice, the violation here i>e ^^ ^j^^ most 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 portant ar-^ open ! Who sliall 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, g 49. Pe- In order to prevent so serious an inconvenience, it is pru- naity an- dent to agree on a penalty to be sufiered by the party who nexed to the violates 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. g§ 1022, 1023. f Lib. iii. cap. xix. g 14. 568 OP THE TREATY OF PEACE. 450 In like manner, there may, to the violation of each IndiA'idual book iv. article, be annexed a penalty proportionate to its importance. CHAP. IV. We have treated of this subject in our remarks on truces violation of (Book III. § 243), to which we refer the reader. _ ^"^ '''^''^^^ 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 ^o^i'^tf'b'® for the same reason, if any insurmountable obstacle should ™^^,^' 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 v,'ill 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. ? 52. Infrac- VI.), examined how and on what occasions the actions of ^'0°^ ^f tte ig^biects may be imputed to the sovereign and the nation. It ^^^^^^^ is by that circumstance we must be guided in determining hoWs^l^jgctg. 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. IV. g^|jJQ(.j-g^ j^Q 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 commit acts of hostility without being able to produce a commission from their sovereign. I 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 Avith regard to themselves, and do not affect it in [ 452 ] "vvhat 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 Avhich 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 offended ^^^ treaty null and void, or allowing it still to subsist : for a ao-ainsthim Contract whicli 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. ^^ comc to a rupture, 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 or THE RIGHT OF EMBASSY. 452 BOOK rv. CHAP. V. CHAP. V. or THE RIGHT OF EMBASSY, OR THE RIGHT OF SENDING AND RECEIVING PUBLIC MINISTERS. IT is necessary that nations should treat and hokl inter- ^ 55. It is course together, in order to promote their interests, — to avoid necessary injuring each other, — and to adjust and terminate their dis- j'^'^* "^*^°°^ putes. And as they all lie under the indispensahle obligation j.^ ^J.Q^^ and of giving their consent and concurrence to whatever conduces communi- to the general advantage and welfare (Prelim. § 13) — of "ate toge- procuring the means of accommodating and terminating their *®''" differences (Book II. § 323, &;c.) — and as each has a right to every thing which her preservation requires (Book I. § 18) — r 453 "1 to every thing which can promote her perfection without in- juring others (lb. § 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 '1° ^^'^^ ^y to a personal conference in order to treat of their affairs. *'^° agency 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, puhliG ministers. This term, in its more extensive and general sense, denotes any person intrust- ed with the management of j^ublio 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, rep'esentative 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- g 57. Every ceivc public ministers; for they are necessary instruments sovereign 571 453 OF THE EIGHT OF EMBASSY. BOOK IV. in the management of those affairs -which sovereigns have to transact with each other, and the channels of that correspond- CHAP. V. state has a encc which they have a right to carry on. In the first chapter right to send Qf ^}jjg Tfyork may be seen who are those sovereigns, and what an receive ^j^^gg independent states, that are entitled to rank in the great public mi- . „'■ . mi 1 1111 nisters. society 01 nations. ihey 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- jjeing incompatible with sovereignty (Book I. §§ 5, 6), — such ance, or a ^j-g^ties 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 of entertaining connections and treating with other powers, this right, j^g necessarily 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. §§T, 8). . _ g 59. Right Nay more, this right may even belong to princes or commu- of the nities not possessed of sovereign power : for the rights Avhose princes and assemblage Constitutes the plenitude of sovereignty, are not empire in indivisible : and if, by the constitution of the state, by the this respect, conccssion of the sovereign, or by reservations which the subjects have made with him, a prince or community remains r 454 ] possessed of any one of those rights Avhich 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, g 60. Cities There are even cities which are and which acknowledge that have themsclvcs to be in a state of subjection, that have never- the right of t}^e|egg g, riorht to receive the ministers of foreio;n powers, and 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- 672 OF THE RIGHT OF EMBASSY. 454 knowledge the right of negotiating and treating, and to con- book iv. test the necessary means of doing it. Those cities of Swit- ^"^^' ^' zerL'ind, such as Neufchatcl 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 g 6i. Minis- province have frequently the right of sending and receiving ters of vice- public ministers ; but, in that particular, they act in the ^'^^^' name and by the authority of the sovereign whom they re- present, and Avhose 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, orifjinally resides in the nation as its principal and ^^'■*. °^ *^® , P . •< ' °i • y -I-. • • , xi • r nation or of prnuitive subject. During an interregnum, the exercise oi ^j^^, regents 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 °^"^- * See the History of the Helvetic Confederacy, by M. de Watteville. 573 455 OF THE RIGHT OF EMBASSY. BOOK IV. CHAP. V. § 63. Of him who molests another in the exercise of the right of embassy. § 64. What is allowable in this re- spect in time of war. [ 456 ] 2 65. The minister of a friendly power is to be received. used to do ; and these ministers possess the same rights as 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 respectability which they possessed under the regal authority. Such being the rights of nations, a sovereign who attempts to hinder another from sending and receiving public ministers, does him an injury, and offends against the law of nations. It is attacking a nation in one of her most valuable rights, and 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. But this is to be understood only of a time of peace : war introduces other rights. It allows us to cut off from an enemy all his resources, and to hinder him from sending mi- 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, &c. This admits of no doubt, for instance, in the case of a besieged town. No right can 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 must 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. As nations are obliged to correspond together, to attend to the proposals and demands made to them, to keep open a free and safe channel of communication for the purpose of 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 iv. 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 ®'.^^°* "^'" ministers, who are desirous of remaining at the sovereign's 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 Avishes 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 ] mcnt 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 1(3G(J, 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 10G8, 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 incum- § C7. How bent on nations to preserve means for putting an end to it. ^^^ minis- Hence it becomes necessary, that, even in the midst of hosti- ^^""^ ^^ '^^ lities, they be at liberty to send ministers to each other, fortoi^^'aj. the purpose of making overtures of peace, or proposals tend- mitted. ing to moderate the transports of hostile rage. It is true, ^ Wickefort's Ambassador, b. i. g 1. 575 457 OP 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 by one of those messengers who are protected by the hiws 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 Avill be proper to dis- ther mans- ^.^gg g^ celebrated question, which has been often debated. It recd'ved ^^ asked whether foreign nations may receive the ambassa- from or sent dors and Other ministers of an usurper, and send their minis- to an usurp- tcrs to him ? In this particular, foreign powers take for their ®'- 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 ^^° J pose the right 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 withdrawing 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 570 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- _ £!li£iJl- dice of his nephew Sigismumd, king of Poland, Avas soon acknowledged by most sovereigns. Villeroj, 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 Avhich 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. C 459 ] OF THE SEVERAL ORDERS OF PUBLIC MINISTERS — OF THE RE- „' ^"ap. vr. PRESENTATIVE CHARACTER — AND OF THE HONOURS DUE TO MINISTERS. IN former days, people were scarcely acquainted with more g 69. Origin than one order of public ministers, in Latin termed legati, of tho seve- which appellation has been rendered by that of "awJassa-''"^ °5^"? '^^ dors." But, when courts were become more proud, and, at ^^g^^'^'s °'^" the same time, more punctilious in the article of ceremony, and especially when they had introduced the idea of extend- 73 2 Y 67r 459 OF THE SEVERAL ORDERS BOOK IV. CHAP. vr. character. ing the minister's representation even to that of his master's dignity, it was 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 Avere required for them. I 70. Repre- Every minister, in some measure, represents his master, as sentative evcry agent or delegate represents his constituent. But this 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 cliaracter^ is the faculty possessed by the minister, of representing his master even in his very person and dignity. The representative character, so termed by way of pre- eminence, or in 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- sadors. That, however, is purely matter of custom. Envoys are not invested with the representative character, properly so called, or in the first degree. They are ministers of the second rank, on whom their master was willing to con- ^71. Am bassadors. ■192) [ 460 ] 'i 72. En- voys. (192) An ambassador 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. In consul, he is to assign the reasons, 578 OF PUBLIC MINISTERS. 460 fer a degree of dignity and respectability, which, without book iv. being on a level Avith the character of an ambassador, im- chap. v i._ 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, S0 IMMUNITIES OF AMBASSADORS, ETC. 467 said (§ 64) that lie may in such case refuse him a passage : cook iv. but he is not to maltreat him, nor suifer any violence to be c"-^''- '^"- oflered 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 afibrd 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 Avar, -we^assadors cease to be under any oblio-ation of leavimi; the enemy in the ^"^"^ \° ^^ ,. . !• 1 ■ • 1 ,1 • • enemy s tree enjoyment oi his rights: on the contrary, we are justi-goy^^y^ fiable in depriving hiin 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 Ave justly refuse a passage to the ministers Avhom our enemy sends to other sovereigns ; Ave may even arrest them if tliey attempt to pass privately, and Avithout permis- sion, through places belonging to our jurisdiction. Of such proceeding the last Avar furnishes a signal instance. A French ambassador, on his route to Berlin, touched, through the imprudence of his guides, at a village AA'ithin the electo- rate of llauover, Avhose sovereign, the king of England, Avas at Avar Aviih France. The minister Avas there arrested and afterwards sent over to England. As his Britannic ma- jesty had in that instance only exerted the rights of Avar, neither the court of France nor that of Prussia complained of his conduct. The reasons AA'hich render embassies necessary, and am-^^'5- Em- bassadors sacred and inviolable, are not less cogent in time '''»*«"^«^"'- of Avar, than in profound peace. On the contrary, the ne-jjji^>^_ cessity and indispensable duty of preserving some resource by Avhich the minds of the belligerent parties may be brought [ 468 ] to a mutual understanding, and peace be restored, is a fresh reason Avhy the persons of ministers, as instruments in the preliminary conferences and final reconciliation, should be still more sacred and inviolable. Nomcn legati, says Cicero, * Solis's history of the Conquest of Mexico. § 17. f Wicquefort's Ambassador, book i. g 1. 58? 468 OF RIGHTS, PRIVILEGES, AND BOOK IV. CHAP. VII, § 87. He- ralds, trum peters, ami drummors. ejiismodi esse debet, quod, non modo, inter soeiorum jura, sed etiam inter hostium tela, incolume versetiir.* 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 :t 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. t 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 [ 469 ] 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 jj 88. Mi- nisters, trumpeters, &c., to be respected, even in a civil wiir. * In Verrcm, orat. i. ( 108) But see ^sop's Fables. — G. ■)■ Wicquefort, book i. g 3. 588 IMMUNITIES OF AMBASSADORS, ETC. 469 confidential persons to each other, how can they, on those cook iv. unfortunate occasions, ever come to talk of peace? What — '- ^ channel remains open for negotiating a salutary accommo- dation ? The same duke of Alva, in the Avar -which the Spaniards afterwards made on the Portuguese, whom they also termed rehels, 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, g S9. 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^'^y^Y*'- always obliged to permit the approach of a trumpeter or ^^^^^^^ ^gg^ 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- percd 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 ^^'°s which wear the appearance of an insult offered to him. Kot only p^^raifce of does the law of nations claim that respect, but prudence i„suit to moreover recommends such caution and delicacy. In 1744, them must the Bailly do (livry sent a trumpeter, with an officer, to sum- ^*^ ''^■°^^^'^- mon the redoubt of Pierrelonge in Piedmont. The Savoyard [ 470 ] officer who comnumded 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 » AVicqiiefort, book i. 21 b. ; 4 Inst. 155; 2 Inst. 57; 1 Chit- (199) See also Cah-in'e 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. vir. g^jiiy (jg 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 l''he princo, the general of the army, and every com- to whom mander-in-chief within his department, have alone the right beTer^ ^ of 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 pendenco of -whicli he has a more sacred and particular claim than any foreign mi- Q^}^g^. person, whether native or foreigner, is not the only (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- thorsj 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 *' Wicquefort, ubi supra. f Idem, ibid. (200) See ante, pp. 459, 464. j See Wolf. Jus Gent. § 1059. 590 IMMUNITIES OF AMBASSADORS, ETC. 470 punish those who injure them : consequently, it empowers book iv. sovereigns to ])unish any foreigner who disturbs the public '^"^''' ^"' tranquillity, who ofionds 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- [ 47J J 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 affairs, 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, docs 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 poAver 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 'i It is a matter of no small importance that he have no snares to apprehend — that he be not liable to be tllvertcd from his functions by any chicanery — that he have notliing 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 Avliicli his master's affairs require. And how shall CHAP. VII. ]^Q ^Q j^i^ig ^^ support 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 was 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. 1 93. How This independency of the foreign minister is not to be the foreign converted into licentiousness : it does not excuse liim from conforming to the customs and laws of the country in all his external actions, so far as they are unconnected with the o»bject 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. minister is to behave. * The fact is advanced by Antony respective chiims to preeedenc}', made dc Vera, in his "Idea of a Perfect a general request to all the foreign Amba.ssador :" 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 ho says, met with it nctian ambassador. The count d'Es- iu any other writer. Ambassad. book i. trades, at that time minister from the ^ 29. court of Franco, having complied with f The king of England having re- his majesty's desire, — Louis XIV. tes- ceivod information that the French tified his dissatisfaction at the defe- and Spanish ambassadors had sevo- rence paid by tho count to the British rally collected considerable numbers monarch's message, " which was no of armed men, for tho 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 AMBASSADORS, ETC. 472 and be guilty of irregularities and crimes — tlierc arc, accord- book rv. ing to the nature and importance of his offences, various ^°'^''' ^'' modes of repressing him : and these "vve 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 poAver 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 Avho 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 arc 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; sinco 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, ho disorder, and which, moreover, is not had attempted to use violence, tho necessary to the exercise of their mi- part which remained for you to act, nistcrial functions, was that of withdrawing from his * Mons. Pequet, Discours sur I'Art court." — I think tho French monarch do Negocier, p. 91. entertained erroneous ideas on tho 73 2 z 2 593 473 OF EIGHTS, PRIVILEGES, AND BOOK IV. of justice, I must, in duty to the moral world, openly aver CHAP. VII. j.|jg^j. ^YiQ mode of 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 corruptor 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 Sully's Memoirs, and the French historians. 594 IMMUNITIES OF AMBASSADORS, ETC. 474 — those examples, I say, sufficientlj show that true greatness book iv. of soul disdains even that resource, lest the adoption of it chap, yi i^ 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 o-ood-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^® ^'J^j^® 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 '^^'"y *'"'»°^- violence against them — the injured subjects are not to seek ^"^^^^'""^ ' redress from the ordinary magistrates, since the ambassador is wholly independent of their jurisdiction : and, for the same reason, those magistrates cannot pi'oceed 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, mai/ order the insolent viinister to quit his dominions. Should a foreign minister offend the prince himself — ?95. 2. for should he fail in the respect which he owes him, or, by his f**"^^^ <=°°^- intrigues, embroil the state and the court — the oflcnded ™'"*'^ • r- '1,1 ■ 1 1 m -1 , against the prince, trom a wish to keep measures with the offender s prince, 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 g %. Right this manner ; for, being master in his own dominions, no of ordering foreigner can stay at his court, or in his territories, without '^^•'^•^ ^° his permission. And thouirh sovereigns are irenerally ^?^"'^'"'*'.! I.TJ T ^ r>f AVUO IS gUll- ODhged to hsten to the overtures of foreign powers, and to tj, 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 or RIGHTS, privileges, and CHAP. VII. BOOK IV. attached to this station, becomes dangerous to, or justly sus- pected by the sovereign, to vhom 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 to 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 Avretched 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 netrotiatino-."* 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 ^ 07. Right But is a prince on every occasion bound to confine his re- of repressing scutmcnt to the simple expulsion of an ambassador, however f ™ ^"^f gi'eat the enormities of which the latter may have been guilty ? behaves as Sucli 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 i. § 29. f Idem, ibid. 59C IMMUNITIES OF AMBASSADORS, ETC. 476 up arras, and uses violence. In such case, those whom he book iv. attacks may repel him : self-defence being authorized by the ^"■^'•- ^'"- law of nature. Those Roman ambassadors, Avho, being sent to the Gauls, fought against tliem 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 ».ass.idor a danixerous tendencv, — who, by his occult machinations, ex-^"'""""^ o " ' 1 "^1 1 (. 1 dangerous cites the subjects to revolt, and who lorms and encourages j^i^^g a^^ conspiracies against the sovereign or the state. Shall it be conspira- deemed unlawful to repress and inflict exemplary punishment "es. on a traitor who abuses the sacred character with Avhich he is invested, and who is himself the first to set the example of violating the law of nations ? That saci'ed law provides no less for the safety of the prince Avho 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 L "^^ ' J 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 dificrent 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, such 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 £E^p.:J^ all the rights of war (Book III. § 188), he is nevertheless obliged to look upon his enemy as enjoying equal rights Avith 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 afiSrm, that, in consideration of the extensive utility, nay, the 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 Avere 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. ^^ 27, 28, 29. tainen gentium valuit. Tit. Liv. lib. ii. f Et quainquain visi sunt (Icgati) cap. 4. commisisso ut hostium loco essent, jus 598 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- ^"^^' ^"' pears that the letters Avhich they had from the conspirators \^ to Tarquin were taken from them. This example leads us to the true rule of the law of na- 1 99. What tions, in the cases now in question. An ambassador cannot"^^y^° be punished because he is indeijcndent : and, for the reasons jj°°^j.j^jj '^^ we have alleged, it is not proper to treat him as an enemy, the exigen- till he himself proceeds to overt acts of violence : but Ave are cy of the justifiable in adopting against him every measure Avhich the*^^®- 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 Avere necessary to arrest or even put to death an ambassador Avho animates and conducts it, I do not see why Ave should for a moment hesitate to take either of those steps, — not only because the safety of the state is the su- preme laAv, but also because, independent of that maxim, the ambassador's OAvn 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 hiAvful to repel his attacks, whether of a secret or of an open nature, and to defend ourselves against him, AvheneA'er he acts either as an enemy or a traitor. And if Ave 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 Avith great truth be asserted, that the minister has, by his OAvn act, excluded himself from the protection of the laAv of nations. Suppose the Venetian senate, — though ap- prised of the marquis of Bedamar's conspiracy, and impressed Avith a thorough conviction of that minister's being the prime [ 479 |] mover and director of the Avhole business, — had nevertheless been, in other particulars, destitute of sufficient information to enable them to crush the detestable plot, — suppose they had been uncertain Avith respect to the number and rank of the conspirators, the designs they had in agitation, and the particular quarter where the meditated mischief Avas to burst forth, — Avhether 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 sufler 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 ansAvcr in the affirmative : — the senate, therefore, Avould 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 Avas removed, and the conspiracy totally suppressed, chose 599 479 OF RIGHTS, PRIVILEGES, AND BOOK IV. CHAP. VII. tempting against the sovereign's life. to keep measures with Spain : wherefore they prohibited all 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 bassador at- already laid down (Book III. § 136,) in treating of what may lawfully be done to an enemy. Whenever an ambassador acts as an enemy, we are justifiable in adopting against him' 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 arc 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 11., emperor of Constantinople; and for his authority he quotes the historian Cedrcnus. The foUowing 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 Bynkershook's treatise on the Competent Judge of Am- bassadors, ch. xxiv. § 5, note 2. GOO IMMUNITIES OP AMBASSADORS, ETC. 480 being apprized of tlie danger, refused to admit the herald book iv. into his presence, and ordered him to be taken into custody. t^nAP. vn. The cul))rit 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 loi. Two debated in England and France on two famous occasions, remarkable In the former of those countries, the question arose in the ''^^t*"^^^^ case of John Leslie, bishop of Ross, ambassador from Mary, ^j^g injiuunu queen of Scots. That minister was continually intriguing ties of pubUc against queen Elizabeth, plotting against the tranquillity of miuisters. 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 Ilcnry 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. j- Cambden's Annal. Angl. ad ann. 1571, 1573. 7G 3 A 601 481 OF RIGHTS, PRIVILEGES, AND BOOK IT. every measure which may be necessary for the purpose of CHAP. Tir. -^aj^-jjing off 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- Ijation : for the prince who uses violence against a public sasmay e jjjjj^jgjgj. jg p-uilty of a Crime ; and we are not to take ven- made on an „".''. , ' . , . , ,,- ambassador. geS'iice tor his misconduct by copymg ms 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, Avho, 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.| 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. Barcoue, 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- imprisoned 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- | Appian, quoted by Grotius, lib. ii. forming him that " it is a maxim with cap. 28, ^ 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, nians." Xviffiuv ovk apr) itiv npaTTctv o if the sovereign to whom he is sent roig Kapxi^ovtoi; Kcya\oiat. 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, denco to refrain from the commission " Though the Ciirthaginians have of any heinous offence, and to behave violated the faith of the trucOj and the 602 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 ^^^' ^'' 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 Granvclle, 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- '^'^^™''°* ciples of the law of nations. These prerogatives are further con°eraing 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^™*^^^^*- 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 if 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 tho Roman people, and of my own China, and Indies. principles." 603 483 OF RIGHTS, TRIVILEGES, AND BOOK IT. Arabs. A writer of that nation* relates the following inci- cnAP. VII. j-jgj^^ . Ki^aief^i^ 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. "J 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, g 104. Frco There are rights of another nature, Avhich, thougli not exercise of ncccssarily annexed to the character of a public minister, religion. ^^Q 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 (§ G6). The minister may, » Alvakedi's History of the Conquest of Syria, f Ockley's History of the Saracens, vol. i. J Choisy's History of St. Louis. 604 IM.ML'NITIKS OF AMBASSADORS, ETC. 484 in this respect, do ^vllat he pleases in his own house, into book iv. which nobody has a riglit to pry or to enter. But, if the — — '- — '■ sovereign of the country where he resides shouM, for sub- stantial reasons, refuse him permission to practise his reli- gion in any manner which miglit 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 bo 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 ^^e ^^^J ^" ^™- not founded on a general consent of nations, but which are exempted nevertheless, by the custom of several countries, annexed to from all im- the ambassadorial character. Of this number is the exemp- 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 Avhicli 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, liis mistress, that the custom-house officers had opened his trunks in order to search them. But the queen returned him for answer, that it Avas "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 arc 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 *■ Wioquefort's Ambass. book i. g 28, towards the end. 3 A 2 605 485 OF RIGHTS, PRIVILEGES, AND BOOK IV. CHAP. VII §106 gation founded on use and custom. a right to put a stop to the fraud, even by suppressing the 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. Obii- But, here it is asked, whether a nation may abolish what general custom has established with respect to foreign minis- ters? Let us then consider what obligation custom and 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, '^"^p- ^"r a mark of contempt, or at least of ill-will. Sometimes princes send to each other secret ministers, ? 107. a whose character is not public. If a minister of this kind be •"•'^i^t*'" insulted by a person unacquainted with his character, such ^^^^^j. jg u^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 dut}^ towards him as [ 486 ] towards a publicly acknoAvledgcd 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 Avitli that secret agent, and had acknowledged him as the French monarch's minister.* AVe cannot introduce in any more proper place an im- ? 108. A portant question of the law of nations, which is nearly allied ^o'^^'^'g^ i° to the rifTjht of embassies. It is asked, what are the rights^ oreign n -11 1 • f ■ 1 country. of a sovereign, who happens to be m a foreign country, and how the master of the country is to treat him 't If that prince be come to negotiate, or to treat about some public afiair, he is doubtless entitled in a more eminent degree to enjoy all the rlfjlits 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 Avho 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, t 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 Ili.^tory of France, vol. v. p. 300, this trifling reason, when he gave &c- orders for arresting Charles Lewis, ■}• It is surprising to see a grave the elector Palatine, who had attouipt- bistoriau give into this opinion. See ed to pass through France incognito : ()07 486 OF RIGHTS, PRIVILEGES, AND BOOK IV. grounded? The absurdity of the doctrine carries its own CHAP. VII. j-efutation 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 wouki, 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 [ -iST ] 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. Dc- 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 ^ '^ ^^' 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 pa.s.s through the liingdom any other power, because those con- without a passport." But ho added <(uests 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 tho Treaty of Westphalia, the other places left by Bernard, duko by Father Bougant, vol. ii. in 12mo. of Saxe-Weymar, and to which Franco p. 88. 608 IMMUNITIES OF AMBASSADORS, ETC. 487 powers: but they are public persons, and in that character book iv. are possessed of privileges which it is our duty to establish "^^^' ^"' before Ave 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 Duko do Guise, commended that resolute act as a necessary stroke of policy ; but when he was told that the cardinal had likcAvise 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 tlirough 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. VIII. CHAP. VIII. OF THE JUDGE OF AMBASSADORS IN CIVIL CASES. § 110. Tho SOME authors will have an ambassador to be subject, in ambassador civil cascs, to the jurisdiction of the country where he re- is exempt gjjgg^ — at least in such cases as have arisen during the time ch-n juris- of his embassj ; and, in support of their opinion, they allege diction of that this subjection is by no means derogatory to the am- tbe country bassadorial character: "for," say they, "however sacred a where he person may be, his inviolability is not aJSected by suing him in a civil action." But it is not on account of the sacrcd- 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 e.\empt 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 (jidveYSus legatum) ?2e ab officio suscepto legationis avocetur,'\ ne impcdiatur legatio'.X" But there was an exception as to those transactions which had taken j)lace 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 Avhatevcr 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, do Judiciis, oportet) dum sacra facit. Digest, lib. itc. leg. 24, g 2. ii. tit. 4. De in Jus vocando, leg. 2. J Ibid. leg. x.wi. 610 IN CIVIL CASES. 489 which states owe to each other, and in accordance "witli the book iv. grand principles of the hnv of nations, that an ambassador chap. vnr. 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 1G68, the rortu_2;uese 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 w4io 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 affiiirs to the '^^ ^''f '^°" jurisdiction of the country, he is undoubtedly at liherty ^"^^.^"^^j^^ to do so, provided it be done with his master's consent. ^cU to it. Witliout 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, acknoAvledges 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 ; i"""**'^'' and in this case, as a subject, he is unquestionably under ^^^^l^^'^^j'^^j. the jurisdiction of the country in every thing which docs not tbo state directly relate to his ministry. But the question is, to de- where he is employed. * M. do Bj-nkershock'a 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 tiquo de Bouillon, Feb. 1, 17?!, p. >"'4, witnessed the circumstance of a foreign and Jan. 13, p. 57. minister in Franco being pursued by Gil 400 OF THE JUDGE OF AMBASSADORS BOOK IV. tcrmine in what cases those two characters, of subject and C HAP. Yiii. foygjg]^ 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 onl}'- 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 Avith 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 powers. "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. I Bynkcrshoek, ubi supra, chap, x" C12 IN CIVIL CASES. 491 CHAP. VIM. the subjection of a minister to the sovereign Avitli whom he book iv. resides, if the foreign prince chooses to acquiesce in such a- 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 likcAvise 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 Charnac(^ and the count D'Estrades Avere 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 § 113. im- of his exemption from the jurisdiction of the country in^uni'yof which he resides. No legal process can be directly issued ^'^^ '"'"'f^'' ^ . GXtGDQ^ to against him, because he is not subject to the authority of the ijjs pj.^^. 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 m;iy 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 Avithin 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 to 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 3B 613 492 OF THE JUDGE OF AMBASSADORS. BOOK IV. that of his household, — every thing of that kind, I say, CHAP, ^"i-. partakes 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, g 114. Tho But this exemption cannot extend to such property as exemption evidently belongs to the ambassador under any other rela- iend to ef- ^^^^ thsLTi that of minister. What has no affinity with his fects be- functions and character cannot partake of the privileges longing to which are solely derived from his functions and character, any trade ghould 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 Avhich 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 Avhich his servant thus becomes involved, he has only to lay on him his injunctions against engaging in commerce, — an occupation, indeed, which ill accords Avith 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 tilings should always be explained to the advantao-e 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 ([uality of minister, as, for instance, articles supplied for the use of his family, house-rent, etc., because any claims which niav lie a»^*i sued before the tribunal to whose jurisdiction he was subject „^jjj,g5jjjj,j_ 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 iu 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 tho exemption from a distress, see Xovello v. Toogood, 1 Barn. Jt Cress. 554-2 ; Dowl. & Ry. 833, S. C— C. * Ou the competent Judge of Ambassadors, chap. xvi. g 6. 615 494 OF THE ambassador's house. CHAP. VIII. BOOK IV. such a procedure. It is absolutely necessary that the niinis- " ter should 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 bo 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 are 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. cnAP. IX. CHAP. IX OF THE ambassador's HOUSE AND DOMESTICS. § 117. Tho THE independency of the ambassador would be very im- ambassa- perfect, and his security very precarious, if the house in ^909^^^""'^°" which he 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 (202) How far exempt from a dis- lord of a house tenanted by an am- tress, see Novdlo v. Toogood, 1 Barn, bassador to the payment of poor-rates A Cres. 551, 2 Dowl. & R. 83.3, S. C. and taxes.— C. Modern acts usually sulijcct tho land- 616 AND DOMESTICS. 494 person exposed to insults. Thus, all the reasons which es- book iv. tablish his independence and inviolability, concur likewise in J^y^^- '^•... 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? lis. Right is established only in fjivour of the minister and his house- °^ a-^yium. 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 Avhich he ouglit to be animated, and to the laAvful 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- 78 3 B 2 617 i95 OF THE ambassadors' HOUSE. BOOK IV. tence of a search after them, and thus involve the state in CHAP. IX. ^^^ 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 Avith 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 Avould, on the contrary, operate to the sub- version and utter ruin of their authoi'ity ; — 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 iv. scription, iiowever great its antiquity, ought not to be '^"'^^' '^' - allowed as a sufficient plea in opposition to justice and reason. An ambassador's carriages and equipages are equally pri- ? 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 ''^" f"^ ^'^^^'^" sovereign whom he represents. They are independent of allj-iaggg. 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- tcnay, 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 Avere 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 Jie, 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 ^'^^ retinue of his household: so intimate a connection exists between ^^^"^^^ ' him and all those persons, that they share the same f^ite with « See Wicqiiefort's Ambassador, book Anne, c. 12 ; and see cases, Cbitty's Col. i. § 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. CHAP. IX. §121. of his wife and family ; ^ 122. of the secretaiy of the em- bassy ; [498 ] § 123. of the ambas- sador's cou- riers and despatches. him ; tliey immediately depend on him alone, and are exempt from the 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, Avhich 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. The ambassador's wife is intimately united with him, and more 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. The ambassador's secretary is one of his domestics : but the secretary of the embassy holds his commission from the sovereign himself; which makes him a kind of public minis- ter, enjoying in his own right the protection of the law of 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. Couriers sent or received by an ambassador, his papers, letters, and despatches, all essentially belong to the embassy, and are consequently to be held sacred ; since, if they were not respected, 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, Avhen the ambassador himself has Adolated 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 accorhplices ; since, in such an emergency, the ambassador himself may lawfully be arrested and interrogated (§ HO). An example is furnished us in the conduct of the Roman government, who seized the letters 620 AVicquofort, book i. ^ 27. AND DOMESTICS. 498 which a treasonable junto had committed to the hands of eook iv. Tarquin's ambassadors (§ 98). ' ' ' " ' The persons in a foreign minister's retinue, being inde-?i24. The pendent of the jurisdiction of the country, cannot be taken '*™^^''''^' into custody or punished without his consent. It would, ^.. ^^^^ nevertheless, be highly improper that they should enjoy an his 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 llony, 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 Rony 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 aceoinmodation between conduct, and to exert his authority' iu 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 bo productive of very se- the count Do Ilareourt. Duporfs Hist, rious and disagreeable consequences, of Conspir. vol. iv. p. 261. Edit. A. D. The French court having sent the 1729. count Do Ilareourt to England to f Sully's Memoirs, vol. vi. chap. i. 621 499 OF THE ambassador's house BOOK IV. ouglit to make a distinction between such of his domestics as _cHAi\jx^ 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 v/here 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 Rony. § 125. When Whcn the commission of an ambassador is at an end, — the rights "wlien he has concluded the business for which he came into bassador" ^^^^ country, — 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 ville, " 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 ^"^^' "' - be taken on his passage, he wouhl be released without a mo- ment's hesitation, as not being subject to hxwful capture. For the same reasons, the ambassador's privileges still 1 12C. Cases exist at those times when the activity of his ministry happens ^i^cn new to be suspended, and he stands in need of fresh powers. '^'"'^^'^'^"''^ ^ Such a case occurs in consequence of the death of the prince gai.y_ 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. 1 127. Con- I do not flatter myself with the idea of haA'ing 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, &c. AGREEMENT. See Treatv, Convex- TIONS. ALIEN ENEMY, 323. See Enemy. ALIENAGE, 176. See Foreigner. ALIENATION, of i)ublic property, 116. See Pro- perty. ALLEGIANCE, obligations of, 6, in note, of subject to a sovereign, 21. ALLIANCE. ^S'-c 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. .S'le Minister. may annul a treaty, 459, h. (192). duty of, when consul of friendly state re- jected, ib. children of and attendants, though burn 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 uf nations, ib. 79 AMBASSADOR {continned). 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 »i. (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, .1. (202). his right of asylum, 495, 496. limitation thereof, ib. exemption of ambassadors' carriage?^ 496. of their retinue, 497, »i. (203). of wife and family of, 497. of secretary of ambassador, ib. of their couriers and despatches, 49S. 3C 625 626 INDEX. AMBASSADOR (confinuecT). authority of, over retinue, 498, and n. f 499. duty of, with respect to, 49S, 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- vernment. 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, ib. military laws, ib. military discipline, ib. 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 7tere, 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 Enemy. AUXILIARIES, what, 324. See Enemy. 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, ib. inflicted as a punishment, ib. is a mark of infamy, ib. how far right of, extends, ib. right of banished party to live somewhere, 108. though right only an imperfect one, ib. nations may refuse him admittance, ib. but not without good reasons, ib. duty of nations towards him, ib. cannot punish him for offences committed out of their territories, 109. except for safety of mankind, ib. BAY, 129, 130. See Sea. BILL OF EXCHANGE. construction of, in this country, 173, w. (111), effect of English Statute of Limitations, ib. BLOCKADE, what, 339, and n. (159). of the violation of, ib. distinction between military and commer- cial blockade, ib. three things necessary to constitute a violation of, ib. 1. The existence of an actual block- ade, ib. 2. The knowledge of the party sup- posed to have violated it, ib. 3. Some act of violation, ib. BOOTY, what, 365. distinction between, and conquest, ib. See Enemy. CAPITULATION. See War. what, 412, 413. how concluded, ib. necessity for observing terms of, 414. instances, 415. duty of sovereigns to see them fulfilled, 414. CAPTURE. See AVar. CASUS FOEDERIS, what, 326. only takes place where war unjust, 326, 330. how it exists in a defensive war, 326. in a treaty of guaranty, ib. INDEX. 62T CELIBACY. See Popery. of priests considered, C9, 70. its effects, 16. CHILDREN, of citizens born in a foreign country, 102, n. (59). See Citizen. born at sea, 102. Sec 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, C2. necessity of acknowledging him to be head of, 66. of taxing church possessions, 72, 73. should bo the first appropriated to the use of the state, 73. ■why should be so, ib. misappropriation of revenues of, il>. 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 iryuries 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, 16. 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. rirflit 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 chooso 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 ti'eaty, 41. exceptions thereto, 42. Of monopolies, ib. generallj' 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, 4.3. government should encourage advan- tageous trade, ih. should lay restraints where disadvan- tageous, 43, and n. (42). what an advantageous trade, 43. what a ruinous trade, ih. 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, 3S5, and notes. CONGRESS, what, 278. CONQUEST, what, 365. distinction between, and booty, ib. CONSCIENCE. law of, the law of nations, Iviii. to Ix. See Law of 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, ih. when entitled to the protection of the law of nations, ih. 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, ih. arrest here on contract, though not per- mitted in country where made, ih. invalidity of, when in favour of alien enemy, 414. CONTRIBUTIONS. See Enemy. what, 366. of the right to levy, ih. CONVENTION. See Treaty. what, 218. of those made by sovereigns, ih. by subordinate powers, ih. who are subordinate powers, ib. when made in the name of the sovereign, ih. or by virtue of their office, ih. power to make, how acquired, ih. by public persons without sufficient powers, 219. when or not valid, ih. of tacit or express ratification thereof, ib. of an agreement called sponsio, ih. foundation of, 219, 220. state not bound by, 220. to what promiser 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, ih. of conventions during war, 404. Sec War. of conventions relating to ransom of prisoners, 419. ^ee Ransom. CONVENTIONAL LAW. See Treaty. what, Ixiv. binds only the contracting parties, Ixv. and n. CONVENTS, ^^ee 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, ih. INDEX. 629 CORPORATION (continued). obligation of, to preserve corporate pro- perty, 116. expenses of, and how borne, ih. COUNTRY, what, 63, 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 idghts, 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, &c., 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, iV;. vessels of a nation a part of its territory, ib. children born therein, born within its territorj-, ib. Otherwise, if born in foreign vessel, (fee, ib. unless in a port belonging to their own nation, ib. COUNTRY (children continued). Children born in the armies oj' 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, ib. Vagrants, ib. Avho are, ib. are people who have no settlement, ib. children of, have no country, ib. when country of, that of parent, ib. 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, ib. distinction between internal and ex- ternal obligation, ib. should not quit, except from necessity, ib. of abandoning country at a time of danger, ib. right of country to punish, ib. and n. Of tem2yorary absence from, 105. right thereto in time of peace, ib. return when public interest requires it, ib. variation in political laws herein, ib. these laws must be observed, ib. when passports requisite, ib. Cases uiherea citizen has a right to quit his country, ib. when he cannot procure subsistence there, ib. where body of society fail to did- eharge their obligations towards him, ib. or attempt to enact laws he is not bound to submit to, 106. instances herein, ib. whore only one religion allowed, lOfi, 57. where popular state wish to have a sovereign, 106, 11. or to submit to a foreign power, 106, 94. Emigrants, 106. who are, ib. sources of right to emigrate, ib. is a natural right, ib. or arising from a fundamental law of the state, ib. or from a voluntarj- grant to the sove- reign, ib. 3c2 630 IXDEX. COUNTRY {emvjmnfs continned). by treaty from foreign power, 100. on account of religion, ih. 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. a 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, lOS. 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, ib. 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. .S'ee 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, 30. 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. DEMOCRACY. 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. See Religion. Po- pery. of the sovereign's authority over, 63, 64. nature of this authority, 64. rule 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, 60. ELECTIVE STATE, what, 23. the right of choosing successor on death of sovereign, ib. elective kings, real sovereigns, 24. istdex^ 631 EMBASSY, right of, what, 152. 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, ib. right not taken away by unequal alliance, ih. or by a treaty of protection, ib. right of princes and states herein, ib. cities that have the riglit 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, 450. minister of friendly power to be received, 456. of resident ministers, ib. 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, ib. from voluntary grant of sovereign, ib. or from treaty with foreign power, ib. infringement of their right, 107. remedy for that infringement, ih. ENEMY, Who is an enemy, 321, and note, distinction between public and private enemy, 321. all subjects of two states at war are ene- mies, ib. and continue so in all places, ib. except in a neutral state, ib. women and children are enemies, 321, 351. how to bo treated, 321, 302. in case of sovereigns, 363. 0/ things belomjintj to the enemi/, 322. belong to the nation at large, i'6. continue such everywhere, ib. when otherwise, ib. neutral things found with enemy not o, ib. lands possessed by foreigners in enemy's countrj-, ib. things duo to the enemy by a third pany, 322, 323. ENEMY (coniimed). 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, ib. subsidies, what, ib. treaties respecting, ib. when a nation allowed to assist another, ib. general principle herein, ib. 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 fcederis, what, ib. never takes place in an unjust war, 326, 330. how it exists in a defensive one, 326. or in a treaty of guarantee, ib. of granting or refusing succours, 326, 327. of two parties in aUianco coming to a rupture, 327. duty of third party herein, ib. 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, ib. or are in an oflfensivo alliance with him, 329. how a defensive alliance associates with the enemy, ib. in what case it does not produce the same efiFect, 329, 330. whether necessary to declare war against enemy's associates, 331. Of the right over things belonging to the ene- my, 364. .S-ee War. Of levying contributions on enemy's country, 366. .S'ee War. Of faith between enemies, 371. See War. ENLISTMENT, of troops, 294. in foreign countries, 298. ENVOY, who, 460. rank of, ib. are ordinary and extraordinary, ib. the latter held in greater consideration, ib. EQUITY, COURT OF, bill in, to enforce treaty, not sustainable, V. in note. 632 I3S[DEX. ESCHEATAGE, what, 176, and note, doctrine of, ib. EXCHANGE. See Money Airo 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. dibtiuclion between, and a lie, 372. when bound to speak the truth to an enemy, 373. See Enemy. FEDERAL REPUBLIC, what, ?,. a union of independent states by a per- petual confederacy, 3. FEUDATORY STATK?, what, 3. one doing homage to a foreign power, 3. though still a aovcrciijn 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, ib. 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, ib. 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, ib. should procure plenty, ib. INDEX. 633 GOVERNMENT {continued). and take care there be sufficient work- men, 33. should prevent emigration of those use- ful, 16. and punish emissaries enticing them away, 34. should encourage labour and industrj', ib. 2. To procure happinexs of nation, 47. nation should labour after its own hap- piness, »7). should instruct people, 47, 48. educate youth, 48. examples of ancient states herein, ib. 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, ib. state, &c. should perfect its understand- ing and will, 52. and direct knowledge of citizens to its welfare, ib. should inspire them with the love of country, 52, 53. so in each individual, 53. the like between the nation and its sovereign, ib. 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 af/ainst external attacks, 87. of national strength, ib. how constituted, ih. by number of citizens, 16. their military virtues, t6. and their riches, t6. increase of population, and how ef- fected, ih. 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, i7). state should have income proportionate to its expenditure, i'6. of the public revenue and taxes, ib. should not increase its power by illegal mcausj 16. 80 GOVERNMENT {continued). power of nation relative, 90. should bo measured by that of its neighbours, 16. or those from whom it has any thing to fear, ib. is sufficiently powerful when it can resist attacks, ib. of the prudence requisite herein, ib. GRANARIES, propriety of establishing of, 36. GUARANTY. See Treaties. for observance of treaties, 235. 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, ih. duration of the guaranty, ib. HARBOURS, of seashore, to whom belonging, 129, 130. HEREDITARY STATE. See Successive State. what, 24. origin of, ib. when may be changed, ib. of renunciations, 25. how far binding, ib. of regents, 27. who to decide disputes respecting succes- sion, ib. foreign powers ought not, 29. HOSPITALS. See War. erection of, for invalids, 296. HOSTAGES. See Treaty. who are such, 238, 239. given for observance of treaties, ib. of the right over them, 239. their liberty alone pledged, ib. when they are to be sent back, i'6. whether they may be detained on any other account, i7'. may bo detained for their own actions, 240. of their support, ib. to be provided by party giving, ib. subject cannot refuse to be, 241. but a vassal may, ib. who may give and receive hostages, t6. rank of hostages, i6. ought not to escape, i'6. on escape, shmild be sent back, 242. death of, whether to be replaced, ib, of him who takes the place of, ib. of a hostage succeeding to the crown, ih, to be released on delivery of another suf- ficient hostage, ib. liability of, ends with treaty, 16. 634 INDEX. HOSTAGES {continued). violation of treaty an injury to tiie host- ages, 243. abandonment of, by sovereign, ib. compensation due to them thereon, ib. 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, 8?>. 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 ((conHnued). 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 one 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 estal)lish supreme courts, ib. of the right of appeal, ib. prince should preserve forms of justice, 80. should support authority of judges, ib. of distribiitire justice, ib. meaning of term, ib. should regulate distribution of employ- ments and rewards, ib. of the punisJimcnt of transgressors, 81. foundation of right to punish, ib. who to punish, ib. of the criminal laws, ib. necessity of, to prevent crime, ib. of the degree of punishment, 82, should be limited to safety of state, ib. should bo proportioned to guilt of party, ib. should not be sanguinarj', ib. 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 agf^ravate tho sentence, 83. of piinloning, ih. 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. tho right of defence, i"6. 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, 12.3. 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, i6. teaches rights and obligations of nations, Iv. in note. knowledge of, essential, ib. how knowledge of, ascertained, ib. Christianity the unfailing rule in con- struction of, i6. in Great Britain held to be part of law of the land, ib. sources of information respecting, enume- rated, ib. In what liykt nation considered, Ivi. LAW OF NATIONS (continued). In what laics it originall>) consistea, .vi. m originally the law of nature, ib. though limited, &c., by circumstances, ib, definition of the necentiary 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, ic, contravening, unlawful, lix. when otherwise, ib. Society cutablished by nature betueen all mankind, ib. as between men, ib. 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. tho peaceable enjoyment ofliberty and independence, ib. effect of that liberty, Ixii., 367. nation may judge for itself, ib. of making war for injuries to, Ixiv. extent of that right, ib. Distinctions between internal and external, perfect and imperfect obligations and rights, Ixii. internal obligation binds the conscience, ib. external relates to men, ib. internal obligation is of the same nature, ib. though varying in degree, i'6. external is divided into perfect and imper- fect, ib. perfect, what, ib. imperfect, what, ib. Equality of nations, Ixiii. all naturally equal, ib. and inherit the same obligations and rights, ib. without regard to power or weakness, ib, cflTeet of that equality, ib. each nation mistress of her own actions, ib. when rights of others not affected thereby, i6. Voluntary law of nations, ib. and note, what meant thereby, i6. right of nations against infractors of, Ixiv. right of declaring war, ib. measure of that right, ib. Conrentional late of nations, Ixv. and n. (Ixiv). what, and who bound by, Ixv. Customary lair of ib. founded on a tacit consent, ib. how distinguished, ib. 636 INDEX. LAW OF NATIONS (continued). general rules respecting, Ixv. how far obligator}', Ixvi. ■when may be relinquished, ib. Positive law of, ib. is of three kinds, ib. voluntary, ib. customary, ib. conventional, ib. from whence proceeding, 16. deduced from the will of nations, ib. distinguished from natural or necessary law of nations, ib. General maxim respectintj rise of necessary and voluntari/ 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, 270. 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. Lb air representative character, ib. MINISTERS, PUBLIC {contimied}. Of ambasmdors, 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 extraordinarj', 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, itc, 461. credentials, what, ib. character of minister known by, ib. Instructions of, defined, ib. what they contain, ib. Kiijht of sendiny ambassadors, 461, 462. Of the rights, privileges, and immunities of, 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, (7). Of auibassadors yoing 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, 408, 469. may be 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 conf )rm 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, 476, 478. 1. for ordinary transgressions, 475. 2. for ofienees against the prince, ib. right of ordering away, ib. or of repressing hira by force, if he be- haves as an enemy, 476. or where he forms dangerous plots and con.spiracies, ib. INDEX. 637 MINISTERS, PUBLIC (conttyiued). 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, 4S1. why not in general permitted, 481, 482. Agreements of nations resitccting jirtvil'-ges of, 482. allowed the free exercise of his religion, 483. exemption of, from imposts, 484. to what extent, ("6. this obligation founded on use and cus- tom, 485. Of secret ministers, ih. rights and duties of, 485, 486. of a sovereign in a foreign country, 486. conduct to be pursued towards, ih. his rights, privileges, and security, 4SC, 487. Of deputies to states, 487. rights and immunities of, ib. safety to persons of, ib. MINISTERS OF RELIGION. Sec Re- ligion. MISSIONARIES, of their employment in religious matters, 158. of refusal of admittance to them, ib. MONARCHY. See Goversmest. defined, 2. a government confided to one person, 2. form of, considered, 2, in note. MONEY AND EXCHANGE, Of the estnhlishmcnt of money, 45. utility and convenience of, ib. commerce facilitated by, ib. duty of nation with respect to coin, ib. impression on the seal of its standard value, ih. should be coined in sovereign's name, ib. amount of coinage, ib. of increasing value of, when inexpedient, ib. rights in respect of, 4G. state alone has the right of coining, ib. of counterfeiting coin, i6. an ofi"ence against the sovereign, ih. 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, i7). or protecting, Ac. those who do, ih. all princes equally interested in extermin- ating them, ib., and note. Of crchangc a-id the laics 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. -S'fe Jurisdiction. jurisdiction of, Iv. in note, cannot enforce treaty, ib. when otherwise, ib. NATION. See State. law of. See Law of Nations. meaning of term nation, Iv., 1. is a moral person, ib. susceptible of obligations and rights, Ir., 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 itxcif, 4. should act agreeably to its nature, ih. should preserve and perfect itself, ih. in what cousijits 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, ih. has a right to everything necessary for its preser\'ation, 6. or which may promote that end, ih. 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, totcards others, 133. foundation of these duties, 133, 134. oflfices 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, i'6. 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 {contimied). 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, ih. rule and measure of the offices of hu- manity, 140. particular limitation irith regard to the prince, 1-il. 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 oflfence to others, 142, 143. of the publication of libels, 143, note. 0/ the protection aoiir/ht hy 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, ib. 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. theso compacts how annulled, 95. by failure of protection, 95, 96, and note. through want of good faith, 95. by inlidolity of party protected, ib. by encroachments of, protected, ih. by silence of party protected, 95, 96. Of the separation of (Illation from a state of which it is a member, 96, 97. differonco between incorporated nations and those merely in a state of sub- jection, ib. 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 ovoreome by force, may treat with the conqueror, ih. 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, ib. another mode of acquiring it, ib. of appropriation of a desert country by a nation, ib. must take entire possession, ib. 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 his dignity, 154. Of the rijht 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, ib. 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, ib. Of missionaries, ib may order them to leave dominions, ib. their duty to obey, ib. of the circumspection to bo 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 tho mother country, ib. Of the thinr/s 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, ib. 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, ib. 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. 0/ the observance of justice between nations, 160. See Justice and Polity. necessity for observance of, 160. m obligation of nations to cultivate it, ib. right of refusing to submit to injustice, 161. this right a perfect one, ib., and pro- duces, the right of defence, ib. the right of doing ourselves justice, ib. and right to punish injustice, ib. right of nations against one that openly despises justice, ib. 0/ terminating disputes between nations, 274. general observations herein, ib. every nation bound to give satisfaction, 275. how nations may abandon their rights and complaints, ib. 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, ib. 1. by amicable accommodation, ib. 2. by compromise, ib. 3. by mediation, ib. 4. by ai-bitration, 277, 27S. these several modes described, 276, 278. of conferences and congresses, 278. distinctions to be made between ei-idi-nt and doubtful cai-es, 278. between essential rights and inferior ones, 279. of resorting to force in doubtful cases, 280. when conciliatory measures may bo dis- pensed with, ib. effect of voluntary law of nations, 2S0, 281. NATION {continued). equitalile conditions to be offered, 281, 282. rights of party in possesgion in doubtful cases, ib. how reparation of injury to be sought, ih. of retaliation, 282, 283. when, and how far justifiable, ib. of the various modes of punishment with- out resorting to arms, 283. of retortion, what, ib. of reprisals, what, 283, 284. ^ee 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 nations, 164. See CorxTKY. Of the rights common to all nations, 178. ^ee Obligations and Rights. Of tear between nations, 290. See War. Of pteace between nations, and obligation to cultivate it, 428. See Peace. NATR'ES. See CorNTRY. who are, 101. those born of parents who are citizens, ib. succeed to rights of parents, 101, . of the jus postliminium with respect to. 398. in force for prisoners, 397. how rights of. subsist. 398. may dispose of and will property, ib. 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, ib., 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. See War. PROPERTY, Different kinds of, 109. is public, common, or private, ib. Of public property, 109, 113. what, 109. called by Romans res commmies, 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, ib. 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 anticij)ation in the use of it, ib. instances of the exercise of this right, ib. 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 properly, 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 apart of the state, 118. 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, ib. 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 fiir tolerated by arbitrary law of nations, ib. now generally settled by treaties, ib. IJS'DEX. 645 PUNISHMENT. See Justice. 0/ tmnnijrcHsors, 81. foundation of right of punishing, ib. 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 pul)lic, ib. consequences of unnecessary severity, ib. importance of enforcing the laws, ib. RANSOM, of prisoners, 357. right to detain till ransomed, ib. tmie of ransom, ib. generally settled by treaty, ib. right of sovereign to enforce payment of ransom, 414. conventions relating to the ran.'jom, 419. right to demand, may be transferred, ib. 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. uistances, ib. prisoner released on condition of pro- curing the relci\sc of another, 420. when bound to return, ib. where prisoner is retaken before pay- ment of ransom, ib. his liability to pay second ransom, ib. otherwise, if rescued before he has ob- tained his liberty, 421. of sliijis, &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, ^-ee Pikty. Of rcliijion external and internal, 56. defined, -ib. as an alTair of conscience, ib. or an afl'air of state, iV^. Rights of individuals us 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, il. 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, "i A., 106. When there is an esfablislwd 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 rc.^'jiect 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, i7.. his right to interfere in sucli 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, iV). Of tdlerulion, ib. of all tenets advis.able, ib, unless dangerous to morality, ib. Of priii'T^s duty, when nation resolved to change is 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. Eight of sovereign to have inspection over matters of religion, 62. should have inspection of all relating thereto, ib. also over those w-ho teach it, ib. its exercise advantageous to the state, ib. a prerogative of majesty, ib. right of nation to delegate this power, ib. sovereign's duty to prevent abuse of received religion, 63. 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, (7). 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, ib. 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, (7). Recapitulation of reasons establishing sove- reign's rights in matters of religion, 64, 65, authorities and examples, 65. Pernicious conxeqaeiicea of denyiwj sovereign to he head of the church, ib. abuses particularized, ib. 1. Power of the popos, 06. See Pope- ry. extent thereof, 66, 67. pernicious cfToct 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 sui)jects 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 clergry, ib. of their assumed pre-eminence, ib. its prejudice on good order, ib. 6. Independence of, 71. immunities of, ib. 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, ib. 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, 7fi 11. Money drawn to Rome, 76 12. Laws and customs contrary to the welfare ot states, ib. consequences of [rusting same to the clergy, ib. pernicious effects thereof on the state, ib. Eight of nations to interfere with religion of each other, 157, "l 58. 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 bo on just grounds before allowed, ib. upon wbat cft'octs reprisals made, ih. and note, general reprisals, what, 285, note, state should compensate those who snuffer by, 285. sovereign alone can order reprisals, ih. INDEX. 647 HEPRISALS (ccmtinued). termed by the French — letters of marque, 285. against a nation for the actions of its subjects, ib. but not in favour of foreigTicrs, ib. those who have given cause for, ought to indemnify the sulfcrers, 286. what deemed a refusal to do justice, 286, 287. arrest of subjects by way of, 287, 481. instances of, tb. 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, &c., 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 ntunber of citizens, 2. RESIDENTS, ^ who, 460. RETALIATION OF INJURIES, 282, 283, 317. RETORTION, 283. REVENUE. See Puopehxy. of the public revenues, 110. at whose disposal, ib. application of, ib. RIGHTS. See Oei.io.\tions and Rights. RIVERS, STREAiMS, AND LAKES, right of nation thereto, 120. of river separating two territories, ib. rules respecting, ib, 1. where nation takes possession of country bounded bj-, ib. priority of possession gives right, ib. 2. and appropriates to itself the use tliercof, lb. 3. where possession doubtful, ib. 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, i7). of the right of alluvion, ib. distinction between, and avulsion, ib. whether it produces any change in the right to the river, ib. where bed of changed, 122. RIVERS, &c. (rontinue^. right of soil of abandoned course, in whom, 122. of works tending to turn the current of, ib. wlicn, 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, iO. 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 exi)ire at death of him who gave it, ib. how may be revoked, ib. time allowed in case of revocation, ib. SAFE-GUARD. &c 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, ib. exclusive right may be acquired by treaties, ib. but not by prescription, or long usage, 127. unless by virtue of a, tacit agreement, ib. but sea near the coasts may become a propertj-, ib. 648 INDEX. SEA {cGntlnued). 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. See 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. See 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, ih. its duties and obligations, Ix. Ixi. its object, Ixi. general laws deduced therefrom, Ix. Ixi. Ixii. 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. of enlistment of, 29-4. SOLDIERS {continuedt). their pay and quarters, 296. of mercenary soldiers, 297. SOVEREIGN, obligations and rights of, 12- who is a sovereign, 1, 13. established for the advantage of society, 13. representative character of, 14. origin of, ib. 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 powerj ib, 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, 2J. 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, ih. or to do homage, ih. two states subject to the same prince, may be, 3. so of states forming a federal republic, ih. when it ceases to bo such, 4. when under dominion of another, ih. SOVEREIGNTY. ^S'ee also Sovereign State. what, 3. indivi.sibility of, 27. is inalienable, 31. SPY, of the employment of, 375, 37G, 358. STATE. See Nation, Law of Nations, Sovereignty. INDEX. 649 STATE (coiitinued). lis comlilulion, 8. duties and rights of the nation in re- spect to, lb. 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 Rivek, Streams, AND Lakes. SUBMISSION. See Nation. of one nation to another, 94. diflerent kinds of, ib. right of citizens on, ib. how treaty of, annulled, 95. distinction between, and incorpora- tion, 96. SUBSIDY. See Exemy. 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. indivi?ibility of sovereigns, ib, who to decide disputes respecting suc- cession, ib. ought not to depend on judgment of a foreign power, 29. BUPPLICAXT. ,S'ee Country. who are, 107. such as implore protection of a sove- reign against nation they have quitted, ib. SURETY. iS'ee Guaranty. for observance of treaties, 237. Set Treaty. S2 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, oi 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, i/j, 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 observinij 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 stthjcrt, 198. 1. those relating to things already due by the law of nature, ib. 650 INDEX. TREATIES (conlinved). 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. diflcrence 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, ib. 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, il). always attaches to the state, ib. unless limited, (6. distinctions between, to be observed, ib. general rules respecting, ib. naming contracting parties in, docs 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, i7;. of those for a certain time, ib. of treaties for king and his successors, ib. treaties for the good of the kingdom, 207. TREATIES (contimied). 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. but 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 clissolu/ioH ami 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 sutilcient 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, (7). 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 l)y princes, 231. use of an oath in treaties, 232. does not constitute the obligation, ib, or proiluce new olihgations, 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 invahd, 233. oi asseverations, 232. violation of, disgraceful, ib. faith of treaties docs 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 guarant)^ 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, whut is sufiiciently declared is to be taken for true, 245, 246. 5th, int. rprefation ought to be made according to certain rules, 246. fi\ith of tr«'aties lays an obligation to follow these rules, 247. general rule of interpretation, ib. TREATIES (continiud). 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, ib. technical terms, how interpreted, 250. of terms whose signification admits of degrees, (6. of figurative expressions, ib. of equivocal expressions, 251. rule for latter cases, ib. not necessary to give a term the same sense everj'where 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, j6. 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 suliject, ib. when change happening in the state of things forms an exception, 261. interpretation of, in unforeseen cases, 262. reasons arisintr from the possibihty and not the existence of the thing, ib. where expressions capable of an ex- tensive and a limited sense, 263. of things favourable and things odious, ib. favouraiile, 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 (cmitimicfJ). so, whatever renders a deed void is odious, 265. all tending to change the present state 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 terms used according to common usage, ib. 2. terms of art to receive the fullest interpretation, 267. 3. but not in an improper signification, unless from necessity, 267. 4. signification to be restricted, where leading to absurdity, ib. 5. to be restricted where equity or a 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, ib. 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, 27.'). 7. of two competing duties, the most important, &c., preferred, ib. 8. of tv>'o promises, tlie party promised to elect, 274. but in case of doubt, promiser to perform that in which most strongly bound, ib. 9. treaty confirmed on oath to bo preferred to one not sworn to, it). 10. treaty enjoined under a penalty, to be preferred to that not enforced by one, ib. so, of that enjoined under a greater penalty to that enforced by a lesser, ib. TREATIES OF PEACE, 432. See Peace. TRIBUTARY STATE. See State. what, 3. is a sovereign state, 3. TROOPS, right of levying, 294. enlistment of, 294, 298. TRUCE. See War. 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, ib. 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, ib. 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, ib. 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, ib. much less to be solicited to treason, ib. persons or effects of enemy not to be seized during truce, ib. 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 ficsh 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, Ixiv. maxim concerning use of, Ixvi. VOLUNTEERS, 401. See War. WAR, Definition of, 291. is public or private, ib. defensive or oflcnsive, 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 inslrumcnts of war. 293. what deemed such, ib. troops, officers, &c., ib. arms, artiller}% &c., ib. right of le\'}-ing 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, 29,5. who exempt, as magistrates, clergy, &c., 29.5, 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. scr\'ice 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, ib. 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, i6. punislunent 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, ib. 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, ib. 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, ib. 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 CNident 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 bv force of arms, 306. 315, 320. in a doubtful cause, 306. when to be resorted to, ib. war cannot be just on both sides, ib. 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. 3e2 654 INDEX. WAR (contiimeil). 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, ib. 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, ih. 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, &iC., ib. also exempted from death, ib. when not, ib. peasants and those not carrying arms, 352, 353. likewise exempt, ib. their freedom in general, ib. when may have restraints imposed on them, 353. Of prisoners of war, ih. See Pr.'^ONEE. right of making, ib. its object, ib. not to be put to death, 348, 354, 355. treatment of, 354, and note, of jirisoncrs who cannot be fed, 355. of condemning tiiem to slavery, 356. INDEX. 655 WAR (lOntiinieJ), exchange and ratisom 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 tlie 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, ih. 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 irar, 381. war, when alawful mode of acquisition, ("/'. conditions necessary to render it just, 384, 385. every acquisition in regular, valid, 385. and this though war unjust, ih. exception in case of war tlestitute 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, ib. WAR (rontinued). 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 POSTLIMINIU-M. 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 Truce. 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, ib. sovereign's fiith engaged in, 406. when truce begins to be obligatory, ib. publication of, ib. sul)jects contravening of, i7). 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 tlie truce, ib. necessity of specifying, 407, 408. how construed in the absence of such specification, 408. general effects of a truce, ih. 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 Ways. 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. MEAKS, STEREOTYPER. 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