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Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.) [1797]

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The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008).

About this title:

A republication of the 1797 translation of Vattel’s work, along with new English translations of 3 early essays.

natural law and enlightenment classics

Knud Haakonssen

General Editor

Emer de Vattel

INTRODUCTION

Life of Vattel

Emer de Vattel’s Le droit des gens. Ou Principes de la loi naturelle, appliqués à la conduite & aux affaires des nations & des souverains (The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns) (1758) was the most important book on the law of nations in the eighteenth century. It was in great measure thanks to this work that the practical and theoretical influence of natural jurisprudence was extended down through the Revolutionary and Napoleonic eras. Indeed, it was Vattel who was cited as a major source of contemporary wisdom on questions of international law in the American Revolution and even by opponents of revolution, such as Cardinal Consalvi, at the Congress of Vienna.

Emer de Vattel was born at Couvet, in Neuchâtel, a principality ruled by the kings of Prussia, on April 25, 1714, as the youngest son of David Vattel and Marie de Montmollin. His father, ennobled in 1727 by the king of Prussia, Friedrich Wilhelm I, was a Protestant clergyman and head of the local congregation of ministers; his mother was the daughter of the principality’s ambassador to the Prussian court. From 1728 to 1730 Vattel was enrolled as a student of the humanities at the University of Basel, where he seems to have attended courses on Samuel Pufendorf given by the Huguenot minister Pierre Roques. In 1733 he went to Geneva to pursue theological and metaphysical studies; one of his teachers was Jean-Jacques Burlamaqui, and it was under Burlamaqui’s tutelage that Vattel first studied in detail the principles of natural law and the law of nations. Little is known of the following years, but in 1740 and 1741 Vattel wrote a series of essays, several of which appeared in Switzerland’s leading literary journal, the Neuchâtelbased Journal Helvétique. The same year also saw his lengthy defense of the philosophy of Leibniz against the accusation of atheism made by the Lausanne professor of philosophy and mathematics Jean-Pierre de Crousaz. Vattel’s Défense, which he dedicated to Friedrich II (“the Great”), earned him an invitation from the French ambassador in Berlin to come to the court of the prince whose subject he was by birth. However, he failed to obtain a diplomatic position and, pressed by financial difficulties, in 1743 he moved to Dresden, where he was promised employment by Count Brühl, first minister of Elector Friedrich August II of Saxony (who as August III was also the elective king of Poland). Vattel spent the next three years in Neuchâtel, writing essays and studying the works of the German philosopher Christian Wolff, while waiting for orders from Dresden. These essays, which included his Dissertation sur cette question: Si la loi naturelle peut porter la société à sa perfection, sans le secours des loix politiques (Dissertation on This Question: Can Natural Law Bring Society to Perfection Without the Assistance of Political Laws?) as well as the Essai sur le fondement du droit naturel, et sur le premier principe de l’obligation où se trouvent tous les hommes, d’en observer les loix (Essay on the Foundation of Natural Law and on the First Principle of the Obligation Men Find Themselves Under to Observe Laws), were published in 1746. In 1747, finally, after dedicating the second edition of the Pièces diverses to Brühl, he was granted a modest annual pension of 500 écus and sent as a permanent minister to Berne. The purpose of his mission remains unclear; some of his compatriots speculated that it was to negotiate the acquisition of Neuchâtel by the elector of Saxony, but it is more likely that he was to facilitate renegotiation of a loan of 700,000 Reichsthaler that Saxony had received from the city the year before. In fact, Vattel’s stay in Berne lasted no longer than a few weeks.

For much of the next ten years Vattel remained in Neuchâtel. From here he sent a stream of letters to Brühl complaining of his ill health and dire financial circumstances. Nevertheless, this turned out to be the most productive period of his life. In 1757 he published a further collection of essays that included dialogues between Diogenes and Marcus Aurelius and between Henry IV of France and his adviser Sully. Also during this period he wrote his masterpiece, Droit des gens, which appeared in Neuchâtel at the end of 1757, though the title page says London 1758. The work quickly established Vattel as a major authority on natural jurisprudence. It also changed his personal situation. In 1759 the elector of Saxony finally recalled Vattel to Dresden, appointed him to the Privy Council, and made him chief adviser to the government of Saxony on foreign affairs. During his stay at Dresden, Vattel published two further works, Mélanges de littérature, de morale, et de politique (1760, reprinted in 1765 as Amusemens de littérature, de morale, et de politique) and Questions de droit naturel et observations sur le traité du droit de nature par le Baron de Wolf (1764), a detailed critique of Wolff’s Ius gentium methodo scientifica pertractatum that Vattel had completed already in 1753. In 1764 he married Marie de Chêne, the daughter of a Huguenot noble family, with whom he had a son. Due to ill health, Vattel was unable to cope with his office and retired to his native Neuchâtel, where he died in December 1767 at the age of fifty-three.

Influence of Swiss Heritage

Although a subject of the king of Prussia by birth, and a servant of the elector of Saxony by profession, Vattel was first and foremost Swiss. However, that description was more complicated in the eighteenth century than it is today. What foreign observers often referred to as the Swiss republic was in fact a loose federation of independent and highly diverse entities, some aristocratic, some democratic, some monarchical, all of them small, some no bigger than a town. The federation was held together by fear of foreign aggression, a complex web of treaties, jointly ruled territories, and military and trade agreements to contain conflict between individual cantons. Although Swiss thinkers frequently invoked a universal society of nations, they remained highly suspicious of projects for perpetual peace in Europe, whether a benevolent hegemony or a European federation. Instead, they saw their best chances of survival in the more fragile order provided by a balance of power between large commercial nations constantly in need of Swiss mercenaries for their armies and Swiss investments for their public coffers. Swiss attachment to state autonomy was so great that, during the 1750s and 1760s, a small but highly vocal minority flirted with Rousseau’s ideas of strict isolationism as the only way to defend Swiss liberty from the aggressiveness of modern commercial politics. Like Vattel, the majority of eighteenth-century Swiss thinkers, however, saw clear military and cultural benefits in commercial progress and ridiculed Rousseau and his followers’ infatuation with the alleged virtuousness of ancient Sparta. They hoped to adapt the humanist heritage of Swiss politics to the realities of a modern economy by showing how new forms of Christian patriotism, assisted by wide-reaching legislative reforms, were able to arrest and dissolve the dangerously “unsocial” tendency of commercial states.

Vattel’s Theory of Natural Law as Applied to the Law of Nations

Against the background of this Swiss debate, we can understand not only Vattel’s vision of a workable European order but also the importance he attributed to political economy for establishing and maintaining a regime of international justice. In a famous passage, Vattel claimed that commerce had transformed Europe from a “confused heap of detached pieces” into a kind of large republic, where all members were united “for the maintenance of order and liberty” (bk. III, §47). An “eternal and immutable law of nature” obliged a state not only to respect and to treat other states as equals but also to provide mutual aid “so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself” (bk. II, §3). Here Vattel claimed to be following Christian Wolff who, in his Ius gentium methodo scientifica pertractatum, derived the duty to mutual aid from analogy between the state of nature and the realm of international relations: the law of nations was simply the law of nature of individuals in the state of nature applied to states (Prelim. §3–9). The primary duties of states were, first, to preserve and perfect themselves, and, second, to assist each other in fulfilling those duties each state owed to itself. States should “cultivate human society,” primarily through trade, as long as the development of commerce did not conflict with their primary duties to themselves. Vattel argued that states that acted upon the principles of natural law alone would ultimately come to form a universal republic: “A real friendship will be seen to reign among them; and this happy state consists in a mutual affection” (bk. II, §12).

Although Vattel claimed that this “delightful dream” was derived directly from human nature, in The Law of Nations he acknowledged that “most nations aim only to strengthen and enrich themselves at the expense of others” (bk. II, §16). Accordingly, prudence prevented existing states from making mutual aid the guiding principle of foreign politics. Instead, states ought to content themselves with a morally less appealing, but nevertheless workable, order based on the balance of power. Vattel explained this acknowledgment of the realities of modern European politics on two grounds. The first was the theoretical incoherence of previous natural law theories with regard to the duties of perfectly independent states. Here he turned against Wolff’s idea of a civitas maxima, as we will see. Vattel claimed that Wolff had rightly distinguished between two forms of the law of nations: first, an immutable or necessary law of nations, signifying the law of nature applied to individual states; second, a voluntary law of nations, which defined the necessary limitations of natural law within the realm of international relations and which, he argued, had to be tolerated in order to avoid greater harm. Although states, like individuals, were bound to assist others, this duty was limited by the perfect right of a state to self-preservation. The implication this had for trade was clear enough: while a state was obliged to trade with all other states and sell its products at a “fair price,” considerations of self-preservation allowed it to limit its trade, establish trading companies, or even refuse commerce with another state altogether. Wolff had also rightly recognized that since the law of nations applied to all states in the same way, those states affected by trade sanctions could merely point out breaches of the necessary law of nations. Refusal to trade, however, did not provide any legal ground for the commencement of military hostilities. The situation was different when a state was not just incapable of self-preservation but lacked any resources to exchange for vital goods. Here, the perfect right of preservation of a potential donor nation was bound to clash with the equally perfect right of preservation of a state on the brink of starvation. It is in this context that one needs to read Vattel’s often-cited justification of the appropriation of uncultivated land by European settlers in America.

Given the increasingly economic dimension of European politics, there was a constant danger that peaceful trade would be subjected to the logic of warfare. Vattel’s main task in The Law of Nations was to define as clearly as possible the limits individual states were allowed to impose on freedom of trade. Wolff hoped to derive such understanding from the image of a civitas maxima, a universal republic instituted by nature, whose civil law was the expression of the right reason of civilized nations. In the preface, Vattel rejected Wolff’s civitas maxima as fictitious and incompatible with the idea of state sovereignty (preface, 14). While civil society could be said to be natural in that it originated in human need, no such thing could be said of the relation between sovereign states: “I acknowledge no other natural society between nations than that which nature has established between mankind in general” (ibid.). In contrast to individuals, nations enjoyed greater autonomy and because of this had no pressing reason to subject themselves to a higher authority. Furthermore, their absolute liberty was necessary “properly to discharge the duties [the state] owes to herself and to her citizens” (preface, 15).

Vattel’s defense of a natural law of nations together with his insistence on state sovereignty earned him a reputation for incoherence, the view of Kant, or, as many international law theorists writing after the First World War maintained, for being an unconditional supporter of reason of state who “disguised his evil intentions through words of sublime charity.” Although in The Law of Nations Vattel dealt with this issue only in passing, he discussed it at length in several of his other writings, notably his Essay on the Foundation of Natural Law and on the First Principle of the Obligation Men Find Themselves Under to Observe Laws. Here he sought to explain how humans could be under an obligation to natural law even in the absence of a punitive superior. Vattel’s main move, primarily aimed at Jean Barbeyrac, was to derive obligation not from any external source, but from what he claimed was man’s most basic motive, namely self-love and a desire for the happiness of a perfect soul. Ultimately it was from man’s obligation to himself to attain the highest degree of happiness, which in turn required commerce with other rational beings, that the duty of mutual aid and friendship could be derived. This also applied to the obedience citizens owed to the state: “The love and affection a man feels for the state of which he is a member, is a necessary consequence of the wise and rational love he owes to himself, since his own happiness is connected with that of his country” (bk. I, §120). In The Law of Nations Vattel used the same argument with regard to states. As in the case of individuals, a nation’s duty of self-preservation and of self-perfection could be derived only from its basic self-interest and its desire to attain the highest level of national happiness. Moreover, like individuals, nations could attain national happiness only by developing more enlightened forms of self-interest, forms that took into account the well-being of other nations. Vattel claimed that the highest degree of national happiness consisted in “true glory” (bk. I, §§186–88). It was acquired through the positive reputation a state enjoyed among well-intentioned nations, and through the respect it received from those seeking to violate the laws of nations. A truly glorious nation, Vattel hoped, would set an example others would wish to emulate. In so doing, it would gradually shift the pathological rivalry between states in the direction of a system based on virtuous competition.

As a further measure for reducing the tensions between self-preservation and mutual aid, Vattel called upon European rulers and their ministers to implement a wide range of legislative reforms that would allow modern nations to break out of the vicious cycle of public borrowing and taxation and to create a healthier balance between income and expenditure (bk. I, §183). Instead of relying on the distributive effect of luxury and conspicuous consumption, rulers should initiate a new culture of virtuous moderation and encourage agriculture so as to procure “abundance in every thing” (bk. I, §73). Although he accepted certain protectionist measures with regard to foreign trade, Vattel insisted that states should intervene as little as possible in the domestic economy and grant individual citizens the maximum amount of natural liberty: “Liberty is the soul of abilities and industry” (bk. I, §74). He also expressly recommended the role of learned societies for the dissemination of technological know-how (bk. I, §76). Vattel believed that of all modern nations Britain had come closest to implementing a system worthy of emulation, and in The Law of Nations he repeatedly singled it out as an example for the rest of Europe, not only with regard to its economy but also with respect to its “admirable constitution.” In contrast with the constitutions of patrimonial states, Britain allowed its citizens to recognize themselves as part of both the nation and the universal society of men (bk. I, §24).

Contemporaries would have recognized Vattel’s stance on perhaps the central issue of European politics at the time: whether Britain or France would prove the stronger in the international rivalry for supremacy. In supporting Britain’s advocacy of an ongoing European balance of power, rather than French hegemony on mainland Europe that was associated with the peace projects of the Abbé de Saint-Pierre and Victor Riqueti de Mirabeau, Vattel was taking a stand on the domestic stability of mixed government as much as he was on the consequences of such a polity for international affairs. In advocating mixed government in commercial monarchies he was going against the grain of the majority of writers, such as Montesquieu and Rousseau, for whom Britain’s mixed government, with its parties, corruption, and factions, represented an institutionalization of civil war domestically that would have dire consequences if transposed into the dominant form of state internationally. Praise of Britain also allowed Vattel to emphasize the greater modernity of Protestant states by contrast with the backwardness of the religious, moral, and economic practices that he associated with Catholicism. In an openly polemical fashion, Vattel often linked such backwardness with reason of state, or amoral policy, in the international sphere and was always ready to provide examples of the violation of natural law from the history of the papacy. Catholic writers were, however, willing to use Vattel for his broader arguments about the independence of small states. One key example is Cardinal Consalvi at the Congress of Vienna, who employed Vattel’s arguments to justify the sovereignty of the Vatican over the papal states.

Vattel was convinced that if Britain played a more active role in the relations between European states, French aspirations to universal monarchy would be countered. This was expected in turn to safeguard the sovereignty of the smaller states, and especially the Swiss republics, the legitimacy of whose existence was increasingly questioned as public credit allowed the larger monarchies to employ mercenary armies too strong for the old republics, however great their republican valor and virtue. Vattel’s case for the survival of small states in the modern world is one of his main themes, especially in The Law of Nations. Vattel’s association of the law of nations with the defense of small states against more powerful neighbors was illustrated in February 1758, after the Prussian army had destroyed castles belonging to the duke of Saxony. Vattel announced to Brühl that his recently published work proved the legitimacy of Saxony’s complaints and also showed that “all powers are obliged to unite and punish the one who wishes to introduce such wicked customs.” Prussia should be held accountable, he explained in a letter addressed to the avoyer and Small Council of Berne, for violating the established rules of war that permitted armed conflict only as a last resort after all diplomatic options had been exhausted. Given that Saxony had not only disarmed but even granted passage to Prussian troops, Friedrich’s systematic plundering of Saxony’s riches and forced enlistment of the “entire flower of youth”—a practice that Vattel described as being without precedent among Christian princes—threatened the very possibility of peaceful coexistence among European nations.

Conclusion

Vattel’s ideas of modern patriotism and encouragement of the economy are not among the most original in The Law of Nations. Nevertheless, they are important because they show the weakness of any attempt to capture Vattel’s position within the analytical framework of retrospective histories of international law or international relations. Besides clarifying more thoroughly than previous thinkers the proper relationship between the natural law of individuals and of states, Vattel used his unusually broad intellectual interests to comment on the cultural, political, and economic conditions required for a viable system of international justice. Vattel saw his magnum opus as a contribution to a great European debate on the science of legislation, a debate that analyzed the possibilities available to modern nations to secure liberty and cultural advancement against constant interruption by war. The importance of The Law of Nations therefore resides both in its systematic derivation of international law from natural law and in its compelling synthesis of the modern discourse of natural jurisprudence with the even newer language of political economy. These features help to explain the continuing appeal of this text well into the nineteenth century among politicians, international lawyers, and political theorists of every complexion.

A NOTE ON THE TEXTS

English Editions of The Law of Nations

Vattel’s Law of Nations was translated anonymously into English several times in the eighteenth century. The first edition of 1760 was based on the French original Droit des gens of 1758. A Dublin translation of 1787 is remarkably fluent and elegant, but it does not include the substantive notes of the original nor, more importantly, the notes added to the posthumous French edition of 1773 and intended by Vattel for a second edition he did not live to complete. Several English editions, including the 1916 Classics of International Law edition, are similarly flawed and based on the edition of 1760. However, two English editions from the end of the eighteenth century include Vattel’s later thoughts. One, from 1793, contains a pagination error. This has been corrected in the revised version, London 1797, and the latter forms the basis for the present edition. The 1797 edition has the benefit of a detailed table of contents and margin titles for subsections.

There is no modern edition of The Law of Nations, but facsimiles of the popular nineteenth-century editions by the London barrister Joseph Chitty have appeared in recent times. These annotated editions (first in 1834) and their reissue with further notes by Edward Ingraham (first in 1852) were based on the 1797 London edition. Chitty helpfully identified the notes that distinguished the 1797 edition from the earlier English translation. He sought, however, to add much more to the text, as he explained in a preface written in Chancery Lane in November 1833:

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

In consequence, Chitty’s text is overloaded with legal citations based on the case law of the sea that emerged in the Napoleonic era. Vattel’s work had become a textbook for law students in both Britain and North America.

Some of Chitty’s notes remain useful and have on occasion been incorporated into the editorial apparatus for this edition. The present edition includes new footnotes, elucidating dates, events, works, and persons referred to by Vattel. Posthumous additions to the French edition of 1773, which were then translated in the edition of 1797, are identified as such in the new notes. Translations of Vattel’s Latin citations have come from the best modern editions, particularly from the Loeb Classical Library. For each translation, reference to the edition used can be found in the bibliography of authors cited. In cases where no translation could be found, or where the context of Vattel’s work required an amended translation, the editors undertook the translation, and this is signaled in the text by “trans. Eds.” All of the preceding new material has been added to the 1797 text as numbered notes or as double square-bracketed inserts within Vattel’s original notes.

Chitty lamented in 1833 that “he 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.” The present edition adds bibliographical and biographical details of authors cited in the text, following up Vattel’s own sometimes obscure references. The bibliography of authors cited includes and explains the short titles employed by Vattel in his footnotes.

Page breaks in the 1797 edition have been indicated in the body of the text by the use of angle brackets. For example, page 112 begins after <112>.

Three Essays by Vattel

The two translations, both for the first time in English, are based on the texts as appended to a nineteenth-century edition of the Le droit des gens: Nouvelle édition, précédé d’un essai et d’une dissertation (de l’auteur), accompagnée des notes de Pinheiro-Ferreira et du Baron de Chambrier d’Oleires, augmente du discours sur l’étude du droit de la nature et des gens par Sir J. Mackintosh (traduction nouvelle), complèté par l’exposition des doctrines des publicistes contemporains mise au courant des progrès du droit public moderne et suivie d’une table analytique des matières, par M. P. Pradier-Fodéré (3 vols.; Paris: Saint-Denis, 1863).

The text of this essay is important because it shows Vattel to have been participating fully in the debates about economic and administrative reform that took place all over Europe at the time. The Dialogue also shows that Vattel’s theory of international law (and especially his assessment of Europe’s chances of having a workable system of international justice) can be fully understood only when seen in the light of his ideas about domestic reform.

In all three essays the original notes have been preserved as numbered notes. New material added by the volume editors is enclosed in double square brackets.

ACKNOWLEDGMENTS

The editors would like to thank Nikolas Funke, Ken Goodwin, Tim Hochstrasser, Amanda McKeever, Norman Vance, and Stefania Tutino for extensive scholarly labors which have immeasurably improved this edition. Ian Gazeley, Julian Hoppit, Istvan Hont, Michael Sonenscher, Gabriella Silvestrini, and Brian Young deserve thanks for help on specific points of fact. Thanks are also due to Laura Goetz, Diana Francoeur, and the editorial team at Liberty Fund, who saw the manuscript through press with outstanding professionalism. Support for the research under pinning this edition was provided by the School of Humanities Research Fund at the University of Sussex, the British Academy, the Arts and Humanities Research Council, the Leverhulme Trust, the Institut d’Etudes Politiques et Internationales de l’université de Lausanne, and the Swiss National Science Foundation. As is always the case, a debt of gratitude is owed to our wives and families, and also to our colleagues in intellectual history at Sussex, Fribourg, and Lausanne. Our greatest debt, however, is to Knud Haakonssen who, master editor that he is, guided us with patience and good humor through the minefield of modern editorial practice.

Béla Kapossy

Richard Whatmore

THE LAW OF NATIONS

THE

LAW OF NATIONS,

or,

PRINCIPLES

OF THE

LAW OF NATURE,

Applied to the Conduct and Affairs

OF NATIONS AND SOVEREIGNS.

from the french of monsieur de vattel.

Nihil est enim illi principi Deo qui omnem hunc mundum regit, quod quidem in terris fiat, acceptius, quam concilia coetusque hominum jure sociati, quae civitates, appellantur.

Cicero, Som. Scip.

a new edition,

Revised, corrected, and enriched with many valuable Notes never before translated into English.

london:

PRINTED FOR G.G. AND J. ROBINSON, PATERNOSTER-ROW.

1797.

ADVERTISEMENT

In undertaking this new edition of Monsieur De Vattel’s treatise, it was not my intention to give what might strictly be called a new translation. To add the author’s valuable notes from the posthumous edition printed at Neuchatel 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 his decision should be more favourable than I have any reason to expect, I lay no claim to praise for my humble efforts, but shall esteem myself very fortunate if I escape the severity of censure for presenting the work to the public in a state still so far short of perfection. Conscious of its defects, I declare with great sincerity—

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

the editor

PREFACE

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

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

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

The Romans, however, acknowledged a law whose obligations are reciprocally binding on nations: and to that law they referred the right of embassies. They had also their fecial law, which was nothing more than the law of nations in its particular relation to public treaties, and especially to war. The feciales were the interpreters, the guardians, and, in a manner, the priests of the public faith.

The moderns are generally agreed in restricting the appellation of “the law of nations” to that system of right and justice which ought to prevail between nations or sovereign states. They differ only in the ideas they entertain of the origin whence that system arose, and of the foundations upon which it rests. The celebrated Grotius understands it to be a system established by the common consent of nations; and he thus distinguishes it from the law of nature: “When several persons, at different times and in various places, maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two—either a just consequence drawn from natural principles, or a universal consent. The former discovers to us the law of nature, and the latter, the law of nations.”

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

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

Puffendorf declares that he unreservedly subscribes to this opinion espoused by Hobbes. He has not therefore separately treated of the law of nations, but has every-where 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 every body’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. “I acknowledge,” says he, “that there are laws common to all nations,—things which all nations ought to practise towards each other: and if people choose to call these the law of nations, they may do so with great propriety. But setting aside the consideration that the consent of mankind is not the basis of the obligation by which we are bound to observe those laws, and that it cannot even possibly take place in this instance,—the principles and the rules of such a law are in fact the same as those 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 Budaeus’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 permitted or required that he should do this.” Here Barbeyrac made one step at least in the right track: but it required more profound reflection and more extensive views in order to conceive the idea of a system of natural law of nations, which should claim the obedience of states and sovereigns,— to perceive the utility of such a work, and especially to be the first to execute it.

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

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

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

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

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

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

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

In the very outset of my work, it will be found that I differ entirely from Monsieur Wolf in the manner of establishing the foundations of that species of law of nations which we call voluntary. Monsieur Wolf deduces it from the idea of a great republic (civitatis maximae) instituted by nature herself, and of which all the nations of the world are members. According to him, the voluntary law of nations is, as it were, the civil law of that great republic. This idea does not satisfy me; nor do I think the fiction of such a republic either admissible in itself, or capable of affording sufficiently solid grounds on which to build the rules of the universal law of nations which shall necessarily claim the obedient acquiescence of sovereign states. I acknowledge no other natural society between nations than that which nature has established between mankind in general. It is essential to every civil society (civitati) that each member have resigned a part of his right to the body of the society, and that there exist in it an authority capable of commanding all the members, of giving them laws, and of compelling those who should refuse to obey. Nothing of this kind can be conceived or supposed to subsist between nations. Each sovereign state claims and actually possesses an absolute independence on all the others. They are all, according to Monsieur Wolf himself, to be considered as so many individuals who live together in the 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 particular obligation to unite in civil society, properly so called: and if they all obeyed the injunctions of that good parent, their subjection to the restraints of civil society would be unnecessary. It is true, that, as there does not exist in mankind a disposition voluntarily to observe towards each other the rules of the law of nature, they have had recourse to a political association, as the only adequate remedy against the depravity of the majority,—the only means of securing the condition of the good, and repressing the wicked: and the law of nature itself approves of this establishment. But it is easy to perceive that the civic association is very far from being equally necessary between nations, as it was between individuals. We cannot therefore say that nature equally recommends it, much less that she has prescribed it. Individuals are so constituted, and are capable of doing so little by themselves, that they can scarcely subsist without the aid and the laws of civil society. But as soon as a considerable number of them have united under 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 difficult or important occasions, arrangements are made and regulations established by means of treaties. To this we may add, that independence is even necessary to each state, in order to enable her properly to discharge the duties she owes to herself and to her citizens, and to govern herself in the manner best suited to her circumstances. It is therefore sufficient (as I have already said) that nations should conform to what is required of them by the natural and general society established between all mankind.

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

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

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

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

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

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

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

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

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

It is principally with a view of rendering my work palatable to those by whom it is of the most importance that it should be read and relished, that I have sometimes joined examples to the maxims I advance: and in that idea I have been confirmed by the approbation of one of those ministers who are the enlightened friends of the human race, and who alone ought to be admitted into the councils of kings. But I have been sparing in the use of such embellishments. Without ever aiming at a vain parade of erudition, I only sought to afford an occasional relaxation to the reader’s mind, or to render the doctrine more impressive by an example, and sometimes to shew that the practice of nations is conformable to the principles laid down: and whenever I found a convenient opportunity, I have, above all things, endeavoured to inspire a love of virtue, by shewing, from some striking passage of history, how amiable it is, how worthy of our homage in some truly great men, and even productive of solid advantage. I have quoted the chief part of my examples from modern history, as well because these are more interesting, as to avoid a repetition of those which have been already accumulated by Grotius, 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 conscious of my deficiency in knowledge and abilities: I saw that I was undertaking an arduous task: but I shall rest satisfied if that class of readers whose opinions are entitled to respect, discover in my labours the traces of the honest man and the good citizen.

PRELIMINARIES

Idea and general Principles of the Law of Nations.

§1. What is meant by a nation or state.Nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.

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

§3. Definition of the law of nations.To establish on a solid foundation the obligations and rights of nations, is the design of this work. The law of nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.

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

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

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

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

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

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

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

§9. Nations can make no change in it, nor dispense with the obligations arising from it.Whence, as this law is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§22. Right of nations against the infractors of the law of nations.The laws of natural society are of such importance to the safety of all states, that, if the custom once prevailed of trampling them under foot, no nation could flatter herself with the hope of preserving her national existence, and enjoying domestic tranquillity, however attentive to pursue every measure dictated by the most consummate prudence, 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 indispensable obligation. All nations have therefore a right to resort to forcible means for the purpose of repressing any one particular nation who openly violates the laws of the society which nature has established between them, or who directly attacks the welfare and safety of that society.

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

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

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

§26. General rule respecting that law.When a custom or usage is generally established, either between all the civilised 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 in-different, and much more, if it be useful and reasonable, it becomes obligatory on all the nations in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. But if that custom contains any thing unjust or unlawful, it is not obligatory: on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorise her to violate the law of nature.

§27. Positive law of nations.These three kinds of law of nations, the voluntary, the conventional, and the customary, together constitute the positive law of nations. For they all proceed from the will of nations,—the voluntary from their presumed consent, the conventional from an express consent, and the customary from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of positive law of nations.

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

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

BOOK I

Of Nations considered in themselves

CHAPTER I

Of Nations or Sovereign States.

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

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

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

§3. Of the several kinds of government.If the body of the nation keeps in its own hands the empire or the right to command, it is a popular government, a democracy; if it entrusts it to a certain number of citizens, to a senate, it establishes an aristocratic republic; finally, if it confides the government to a single person, the state becomes a monarchy.

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER II

General Principles of the Duties of a Nation towards itself.

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

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

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

The preservation of a nation consists in the duration of the political association by which it is formed. If a period is put to this association, the nation or state no longer subsists, though the individuals that composed it, still exist.

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

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

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

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

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

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

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

§18. A nation has a right to every thing necessary for its preservation.Since then a nation is obliged to preserve itself, it has a right to every thing necessary for its preservation. For the Law of Nature gives us a right to every thing, without which we cannot fulfil our obligation; otherwise it would oblige us to do impossibilities, or rather would contradict itself in prescribing us a duty, and at the same time debarring us of the only means of fulfilling it. It will doubtless be here understood, that those means ought not to be unjust in themselves, or such as are absolutely forbidden by the Law of Nature. As it is impossible that it should ever permit the use of such means,—if on a particular occasion no other present themselves for fulfilling a general obligation, the obligation must, in that particular instance, be looked on as impossible, and consequently void.

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

§20. Of its right to every thing that may promote this end.A nation or state has a right to every thing that can help to ward off imminent danger, and keep at a distance whatever is capable of causing its ruin; and that from the very same reasons that establish its right to the things necessary to its preservation.

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

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

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

§22. And to avoid every thing contrary to its perfection.A nation therefore ought to prevent, and carefully to avoid, whatever may hinder its perfection and that of the state, or retard the progress either of the one or the other.

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

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

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

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

CHAPTER III

Of the Constitution of a State, and the Duties and Rights of the Nation in this respect.

We were unable to avoid, in the first chapter, anticipating something of the subject of this.

§26. Of public authority.We have seen already that every political society must necessarily establish a public authority, to regulate their common affairs,—to prescribe to each individual the conduct he ought to observe with a view to the public welfare,—and to possess the means of procuring obedience. This authority essentially belongs to the body of the society; but it may be exercised in a variety of ways; and every society has a right to choose that mode which suits it best.

§27. What is the constitution of a state.The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body-politic,—how and by whom the people are to be governed,— and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established.

§28. The nation ought to chuse the best constitution.The perfection of a state, and its aptitude to attain the ends of society, must then depend on its constitution: consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to chuse the best constitution possible, and that most suitable to its circumstances. When it makes this choice, it lays the foundation of its own preservation, safety, perfection, and happiness:—it cannot take too much care in placing these on a solid basis.

§29. Of political, fundamental, and civil laws.The laws are regulations established by public authority, to be observed in society. All these ought to relate to the welfare of the state and of the citizens. The laws made directly with a view to the public welfare are political laws; and in this class, those that concern the body itself and the being of the society, the form of government, the manner in which the public authority is to be exerted,—those, in a word, which together form the constitution of the state, are the fundamental laws.

The civil laws are those that regulate the rights and conduct of the citizens among themselves.

Every nation that would not be wanting to itself, ought to apply its utmost care in establishing these laws, and principally its fundamental laws,—in establishing them, I say, with wisdom, in a manner suitable to the genius of the people, and to all the circumstances in which they may be placed: they ought to determine them and make them known with plainness and precision, to the end that they may possess stability, that they may not be eluded, and, that they may create, if possible, no dissension—that, on the one hand, he or they to whom the exercise of the sovereign power is committed, and the citizens, on the other, may equally know their duty, and their rights. It is not here necessary to consider in detail, what that constitution and those laws ought to be:—this discussion belongs to public law and politics. Besides, the laws and constitutions of different states must necessarily vary according to the disposition of the people, and other circumstances. In the Law of Nations we must adhere to generals. We here consider the duty of a nation towards itself, principally to determine the conduct that it ought to observe in that great society which nature has established among all nations. These duties give it rights, that serve as a rule to establish what it may require from other nations, and reciprocally what others may require from it.

§30. Of the support of the constitution and obedience to the laws.The constitution and laws of a state are the basis of the public tranquillity, the firmest support of political authority, and a security for the liberty of the citizens. But this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed: the nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the constitution of the state, and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are intrusted. The nation ought constantly to repress them with its utmost vigour and vigilance, as the importance of the case requires. It is very uncommon to see the laws and constitution of a state openly and boldly opposed: it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men: they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked. It would be rendering nations an important service, to shew from history, how many states have thus entirely changed their nature, and lost their original constitution. This would awaken the attention of man-kind:—impressed thenceforward with this excellent maxim (no less essential in politics than in morals), principiis obsta, —they would no longer shut their eyes against innovations, which, though inconsiderable in themselves, may serve as steps to mount to higher and more pernicious enterprises.

§31. The rights of a nation with respect to its constitution and government.The consequences of a good or bad constitution being of such importance, and the nation being strictly obliged to procure, as far as possible, the best and most convenient one, it has a right to every thing necessary to enable it to fulfil this obligation (§18). It is then manifest that a nation has an indisputable right to form, maintain, and perfect its constitution,—to regulate at pleasure every thing relating to the government,—and that no person can have a just right to hinder it. Government is established only for the sake of the nation, with a view to its safety and happiness.

§32. It may reform the government.If any nation is dissatisfied with the public administration, it may apply the necessary remedies, and reform the government. But observe that I say “the nation”; for I am very far from meaning to authorise a few malcontents or incendiaries to give disturbance to their governors by exciting murmurs and seditions. None but the body of a nation have a right to check those at the helm when they abuse their power. When the nation is silent and obeys, the people are considered as approving the conduct of their superiors, or at least finding it supportable; and it is not the business of a small number of citizens to put the state in danger, under the pretence of reforming it.

§33. And may change the constitution.In virtue of the same principles, it is certain that if the nation is uneasy under its constitution, it has a right to change it.

There can be no difficulty in the case, if the whole nation be unanimously inclined to make this change. But it is asked, what is to be done if the people are divided? In the ordinary manage-ment of the state, the opinion of the majority must pass without dispute for that of the whole nation; otherwise it would be almost impossible for the society ever to take any resolution. It appears then by parity of reasoning, that a nation may change the constitution of the state by a majority of votes; and whenever there is nothing in this change that can be considered as contrary to the act of civil association, or to the intention of those united under it, the whole are bound to conform to the resolution of the majority. But if the question be, to quit a form of government, to which alone it appeared that the people were willing to submit on their entering into the bonds of society,—if the greater part of a free people, after the example of the Jews in the time of Samuel, are weary of liberty, and resolved to submit to the authority of a monarch,—those citizens who are more jealous of that privilege, so invaluable to those who have tasted it,—though obliged to suffer the majority to do as they please,—are under no obligation at all to submit to the new government: they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.

§34. Of the legislative power, and whether it can change the constitution.Here again a very important question presents itself. It essentially belongs to the society to make laws both in relation to the manner in which it desires to be governed, and to the conduct of the citizens:—this is called the legislative power. The nation may intrust the exercise of it to the prince, or to an assembly; or to that assembly and the prince jointly; who have then a right to make new laws and to repeal old ones. 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 fundamental 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 legislature the power of abrogating the ancient civil and political laws that were not fundamental, and of making new ones: but nothing leads us to think that it meant to submit the constitution itself to their will. In short, it is from the constitution that those legislators derive their power: how then can they change it, without destroying the foundation of their own authority? By the fundamental laws of England, the two houses of parliament, in concert with the king, exercise the legislative power: but if the two houses should resolve to suppress themselves, and to invest the king with full and absolute authority, certainly the nation would not suffer it. And who would dare to assert that they would not have a right to oppose it? But if the parliament entered into a debate on making so considerable a change, and the whole nation was voluntarily silent upon it, this would be considered as an approbation of the act of its representatives.

§35. The nation ought not to attempt it without great caution.But in treating here of the change of the constitution, we treat only of the right: the question of expediency belongs to politics. We shall therefore only observe in general, that, great changes in a state being delicate and dangerous operations, and frequent changes being in their own nature prejudicial, a people ought to be very circumspect in this point, and never be inclined to make innovations without the most pressing reasons, or an absolute necessity. The fickleness of the Athenians was ever inimical to the happiness of the republic, and at length proved fatal to that liberty of which they were so jealous, without knowing how to enjoy it.

§36. It is the judge of all disputes relating to the government.We may conclude from what has been said (§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.

§37. No foreign power has a right to interfere.In short, all these affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices, unless requested to do it, or induced by particular reasons. If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury.

CHAPTER IV

Of the Sovereign, his Obligations, and his Rights.

§38. Of the sovereign.The reader cannot expect to find here a long deduction of the rights of sovereignty, and the functions of a prince. These are to be found in treatises on the public law. In this chapter we only propose to shew, in consequence of the grand principles of the law of nations, what a sovereign is, and to give a general idea of his obligations and his rights.

We have said that the sovereignty is that public authority which commands in civil society, and orders and directs what each citizen is to perform, to obtain the end of its institution. This authority originally and essentially belonged to the body of the society, to which each member submitted, and ceded his natural right of conducting himself in every thing as he pleased according to the dictates of his own understanding, and of doing himself justice. But the body of the society does not always retain in its own hands this sovereign authority: it frequently intrusts it to a senate, or to a single person. That senate, or that person, is then the sovereign.

§39. It is solely established for the safety and advantage of society.It is evident that men form a political society, and submit to laws, solely for their own advantage and safety. The sovereign authority is then established only for the common good of all the citizens; and it would be absurd to think that it could change its nature on passing into the hands of a senate or a monarch. Flattery therefore cannot, without rendering itself equally ridiculous and odious, deny that the sovereign is only established for the safety and advantage of society.

A good prince, a wise conductor of society, ought to have his mind impressed with this great truth, that the sovereign power is solely intrusted to him for the safety of the state, and the happiness of all the people,—that he is not permitted to consider himself as the principal object in the administration of affairs, to seek his own satisfaction, or his private advantage,—but that he ought to direct all his views, all his steps, to the greatest advantage of the state and people who have submitted to him. What a noble sight it is to see a king of England rendering his parliament an account of his principal operations,—assuring that body, the representatives of the nation, that he has no other end in view than the glory of the state, and the happiness of his people,—and affectionately thanking all who concur with him in such salutary views! Certainly a monarch who makes use of this language, and by his conduct proves the sincerity of his professions, is, in the opinion of the wise, the only great man. But in most kingdoms, a criminal flattery has long since caused these maxims to be forgotten. A crowd of servile courtiers easily persuade a proud monarch that the nation was made for him, and not he for the nation. He soon considers the kingdom as a patrimony that is his own property, and his people as a herd of cattle from which he is to derive his wealth, and which he may dispose of to answer his own views, and gratify his passions. Hence those fatal wars undertaken by ambition, restlessness, hatred and pride;—hence those oppressive taxes, whose produce is dissipated by ruinous luxury, or squandered upon mistresses and favourites;—hence, in fine, are important posts given by favour, while public merit is neglected, and every thing that does not immediately interest the prince, is abandoned to ministers and subalterns. Who can, in this unhappy government, discover an authority established for the public welfare?—A great prince will be on his guard even against his virtues. Let us not say, with some writers, that private virtues are not the virtues of kings,—a maxim of superficial politicians, or of those who are very inaccurate in their expressions. Goodness, friendship, gratitude, are still virtues on the throne; and would to God they were always to be found there! but a wise king does not yield an undiscerning obedience to their impulse. He cherishes them, he cultivates them in his private life: but in state-affairs he listens only to justice and sound policy. And why? because he knows that the government was intrusted to him only for the happiness of society, and that therefore he ought not to consult his own pleasure in the use he makes of his power. He tempers his goodness with wisdom. He gives to friendship his domestic and private favours; he distributes posts and employments according to merit,—public rewards to services done to the state. In a word, he uses the public power only with a view to the public welfare. All this is comprehended in that fine saying of Lewis XII. “A king of France does not revenge the injuries of a duke of Orleans.”

§40. Of his representative character.A political society is a moral person (prelim. §2) inasmuch as it has an understanding and a will of which it makes use for the conduct of its affairs, and is capable of obligations and rights. When therefore a people confer the sovereignty on any one person, they invest him with their understanding and will, and make over to him their obligations and rights, so far as relates to the administration of the state, and to the exercise of the public authority. The sovereign, or conductor of the state, thus becoming the depositary of the obligations and rights relative to government, in him is found the moral person, who, without absolutely ceasing to exist in the nation, acts thenceforwards only in him and by him. Such is the origin of the representative character attributed to the sovereign. He represents the nation in all the affairs in which he may happen to be engaged as a sovereign. It does not debase the dignity of the greatest monarch to attribute to him this representative character; on the contrary, nothing sheds a greater lustre on it, since the monarch thus unites in his own person all the majesty that belongs to the entire body of the nation.

§41. He is intrusted with the obligations of the nation, and invested with its rights.The sovereign, thus clothed with the public authority, with every thing that constitutes the moral personality of the nation, of course becomes bound by the obligations of that nation, and invested with its rights.

§42. His duty with respect to the preservation and perfection of the nation.All that has been said in chap. II. of the general duties of a nation towards itself, particularly regards the sovereign. He is the depositary of the empire, and of the power of commanding whatever conduces to the public welfare; he ought, therefore, as a tender and wise father, and as a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect,—to better its state, and to secure it, as far as possible, against every thing that threatens its safety or its happiness.

§43. His rights in this respect.Hence all the rights which a nation derives from its obligation to preserve and perfect itself, and to improve its state, (see §§18, 20, and 23, of this book)—all these rights, I say, reside in the sovereign, who is therefore indifferently called the conductor of the society, superior, prince, &c.

§44. He ought to know the nation.We have observed above, that every nation ought to know itself. This obligation devolves on the sovereign, since it is he who is to watch over the preservation and perfection of the nation. The duty which the law of nature here imposes on the conductors of nations is of extreme importance, and of considerable extent. They ought exactly to know the whole country subject to their authority,—its qualities, defects, advantages, and situation with regard to the neighbouring states; and they ought to acquire a perfect knowledge of the manners and general inclinations of their people, their virtues, vices, talents, &c. All these branches of knowledge are necessary to enable them to govern properly.

§45. The extent of his power.The prince derives his authority from the nation; he possesses just so much of it as they have thought proper to intrust him with. If the nation has plainly and simply invested him with the sovereignty without limitation or division, he is supposed to be invested with all the Prerogatives of majesty.prerogatives, without which the sovereign command or authority could not be exerted in the manner most conducive to the public welfare. These are called regal prerogatives, or the prerogatives of majesty.

§46. The prince ought to respect and support the fundamental laws.But when the sovereign power is limited and regulated by the fundamental laws of the state, those laws shew the prince the extent and bounds of his power, and the manner in which he is to exert it. The prince is therefore strictly obliged not only to respect, but also to support them. The constitution and the fundamental laws are the plan on which the nation has resolved to labour for the attainment of happiness: the execution is intrusted to the prince. Let him religiously follow this plan,—let him consider the fundamental laws as inviolable and sacred rules,—and remember that the moment he deviates from them, his commands become unjust, and are but a criminal abuse of the power with which he is intrusted. He is, by virtue of that power, the guardian and defender of the laws:—and while it is his duty to restrain each daring violator of them, ought he himself to trample them under foot?

§47. He may change the laws not fundamental.If the prince be invested with the legislative power, he may, according to his wisdom, and when the public advantage requires it, abolish those laws that are not fundamental, and make new ones. See what we have said on this subject in the preceding chapter, §34.

§48. He ought to maintain and observe the existing laws.But while these laws exist, the sovereign ought religiously to maintain and observe them. They are the foundation of the public tranquillity, and the firmest support of the sovereign authority. Every thing is uncertain, violent, and subject to revolutions, in those unhappy states where arbitrary power has placed her throne. It is therefore the true interest of the prince, as well as his duty, to maintain and respect the laws. He ought to submit to them himself. We find this truth established in a piece published by order of Lewis XIV. one of the most absolute princes that ever reigned in Europe. “Let it not be said that the sovereign is not subject to the laws of his state, since the contrary proposition is one of the truths of the law of nations, which flattery has sometimes attacked, and which good princes have always defended, as a tutelar divinity of their states.”

§49. In what sense he is subject to the laws.But it is necessary to explain this submission of the prince to the laws. First he ought, as we have just seen, to follow their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, “in his private affairs”; for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of them, whenever natural justice and equity will permit him. Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by his example. But, sixthly, he is certainly above all civil penal laws. The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretence of a fault that does not directly concern the government of the state.

§50. His person is sacred and inviolable.It is not sufficient that the prince be above the penal laws: even the interest of nations requires that we should go something farther. The sovereign is the soul of the society; if he be not held in veneration by the people, and in perfect security, the public peace, and the happiness and safety of the state, are in continual danger. The safety of the nation then necessarily requires that the person of the prince be sacred and inviolable. The Roman people bestowed this privilege on their tribunes, in order that they might meet with no obstruction in defending them, and that no apprehension might disturb them in the discharge of their office. The cares, the employments of a sovereign, are of much greater importance than those of the tribunes were, and not less dangerous, if he be not provided with a powerful defence. It is impossible even for the most just and wise monarch, not to make mal-contents; and ought the state to continue exposed to the danger of losing so valuable a prince by the hand of an assassin? The monstrous and absurd doctrine, that a private person is permitted to kill a bad prince, deprived the French, in the beginning of the last century, of a hero who was truly the father of his people. Whatever a prince may be, it is an enormous crime against a nation to deprive them of a sovereign whom they think proper to obey.

§51. But the nation may curb a tyrant, and withdraw itself from his obedience.But this high attribute of sovereignty is no reason why the nation should not curb an insupportable tyrant, pronounce sentence on him (still respecting in his person the majesty of his rank), and withdraw itself from his obedience. To this indisputable right a powerful republic owes its birth. The tyranny exercised by Philip II. in the Netherlands excited those provinces to rise: seven of them, closely confederated, bravely maintained their liberties, under the conduct of the heroes of the house of Orange; and Spain, after several vain and ruinous efforts, acknowledged them sovereign and independent states. If the authority of the prince is limited and regulated by the fundamental laws, the prince, on exceeding the bounds prescribed him, commands without any right, and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts. As soon as a prince attacks the constitution of the state, he breaks the contract which bound the people to him: the people become free by the act of the sovereign, and can no longer view him but as an 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 nought 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 controul his actions and resist him, where it thinks them unjust, his authority would no longer be absolute; which would be contrary to this hypothesis. They say that an absolute sovereign completely possesses all the political authority of the society, which nobody can oppose,—that, if he abuses it, he does ill indeed, and wounds his conscience,—but that his commands are not the less obligatory, as being founded on a lawful right to command,— that the nation, by giving him absolute authority, has reserved no share of it to itself, and has submitted to his discretion, &c. We might be content with answering, that in this light there is not any sovereign who is completely and fully absolute. But in order to remove all these vain subtleties, let us remember the essential end of civil society. Is it not to labour in concert for the common happiness of all? Was it not with this view that every citizen divested himself of his rights, and resigned his liberty? Could the society make such use of its authority, as irrevocably to surrender itself and all its members to the discretion of a cruel tyrant? No, certainly, since it would no longer possess any right itself, if it were disposed to oppress a part of the citizens. When therefore it confers the supreme and absolute government, without an express reserve, it is necessarily with the tacit reserve that the sovereign shall use it for the safety of the people, and not for their ruin. If he becomes the scourge of the state, he degrades himself; he is no better than a public enemy, against whom the nation may and ought to defend itself; and if he has carried his tyranny to the utmost height, why should even the life of so cruel and perfidious an enemy be spared? Who shall presume to blame the conduct of the Roman senate, that declared Nero an enemy to his country?

But it is of the utmost importance to observe, that this judgment can only be passed by the nation, or by a body which represents it, and that the nation itself can not make any attempt on the person of the sovereign, except in cases of extreme necessity, and when the prince, by violating the laws, and threatening the safety of his people, puts himself in a state of war against them. It is the person of the sovereign, not that of an unnatural tyrant and a public enemy, that the interest of the nation declares sacred and inviolable. We seldom see such monsters as Nero. In the more common cases, when a prince violates the fundamental laws,— when he attacks the liberties and privileges of his subjects,—or (if he be absolute) when his government, without being carried to extreme violence, manifestly tends to the ruin of the nation,—it may resist him, pass sentence on him, and withdraw from his obedience: but though this may be done, still his person should be spared, and that for the welfare of the state. It is above a century since the English took up arms against their king, and obliged him to descend from the throne. A set of able enterprising men, spurred on by ambition, took advantage of the terrible ferment, caused by fanaticism and party spirit; and Great Britain suffered her sovereign to die unworthily on a scaffold. The nation coming to itself discovered its former blindness. If, to this day, it still annually makes a solemn atonement, it is not only, from the opinion that the unfortunate Charles I. did not deserve so cruel a fate, but, doubtless, from a conviction that the very safety of the state requires the person of the sovereign to be held sacred and inviolable, and that the whole nation ought to render this maxim venerable, by paying respect to it when the care of its own preservation will permit.

One word more on the distinction that is endeavoured to be made here in favour of an absolute sovereign. Whoever has well weighed the force of the indisputable principles we have established, will be convinced, that, when it is necessary to resist a prince who has become a tyrant, the right of the people is still the same, whether that prince was made absolute by the laws, or was not; because that right is derived from what is the object of all political society,—the safety of the nation, which is the supreme law. But if the distinction of which we are treating, is of no moment with respect to the right, it can be of none in practice, with respect to expediency. As it is very difficult to oppose an absolute prince, and it cannot be done without raising great disturbances in the state, and the most violent and dangerous commotions, it ought to be attempted only in cases of extremity, when the public misery is raised to such a height, that the people may say with Tacitus, miseram pacem vel bello bene mutari, —that it is better to expose themselves to a civil war, than to endure them. But if the prince’s authority be limited,—if it in some respects depends on a senate or a parliament that represents the nation,—there are means of resisting and curbing him, without exposing the state to violent shocks. When mild and innocent remedies can be applied to the evil, there can be no reason for waiting until it becomes extreme.

§52. Arbitration between the king and his subjects.But however limited a prince’s authority may be, he is commonly very jealous of it; it seldom happens that he patiently suffers resistance, and peaceably submits to the judgment of his people. Can he want support, while he is the distributer of favours? We see too many base and ambitious souls, for whom the state of a rich and decorated slave has more charms than that of a modest and virtuous citizen. It is therefore always difficult for a nation to resist a prince and pronounce sentence on his conduct, without exposing the state to dangerous troubles, and to shocks capable of overturning it. This has sometimes occasioned a compromise between the prince and the subjects, to submit to the decision of a friendly power all the disputes that might arise between them. Thus the kings of Denmark, by solemn treaties, formerly referred to those of Sweden the differences that might arise between them and their senate: and this the kings of Sweden have also done with regard to those of Denmark. The princes and states of West Friesland, and the burgesses of Embden, have in the same manner constituted the republic of the United Provinces the judge of their differences. The princes and the city of Neufchatel established, in 1406, the canton of Berne perpetual judge and arbitrator of their disputes. Thus also, according to the spirit of the Helvetic confederacy, the entire body takes cognisance of the disturbances that arise in any of the confederated states, though each of them is truly sovereign and independent.

§53. The obedience which subjects owe to a sovereign.As soon as a nation acknowledges a prince for its lawful sovereign, all the citizens owe him a faithful obedience. He can neither govern the state, nor perform what the nation expects from him, if he be not punctually obeyed. Subjects then have no right, in doubtful cases, to examine the wisdom or justice of their sovereign’s commands; this examination belongs to the prince: his subjects ought to suppose (if there be a possibility of supposing it) that all his orders are just and salutary: he alone is accountable for the evil that may result from them.

§54. In what cases they may resist him.Nevertheless this ought not to be entirely a blind obedience. No engagement can oblige or even authorise a man to violate the law of nature. All authors who have any regard to conscience or decency, agree that no one ought to obey such commands as are evidently contrary to that sacred law. Those governors of places who bravely refused to execute the barbarous orders of Charles IX. on the memorable day of St. Bartholomew, have been universally praised; and the court did not dare to punish them, at least openly. “Sire,” said the brave Orte, governor of Bayonne, in his letter, “I have communicated your majesty’s command to your faithful inhabitants and warriors in the garrison: and I have found there only good citizens and brave soldiers; but not a single executioner: wherefore both they and I most humbly entreat your majesty to be pleased to employ our hands and our lives in things that are possible, however hazardous they may be; and we will exert ourselves to the last drop of our blood in the execution of them.” The count de Tende, Charny, and others, replied to those who brought them the orders of the court, “that they had too great a respect for the king, to believe that such barbarous orders came from him.”

It is more difficult to determine in what cases a subject may not only refuse to obey, but even resist a sovereign, and oppose his violence by force. When a sovereign does injury to any one, he acts without any real authority; but we ought not thence to conclude hastily that the subject may resist him. The nature of sovereignty, and the welfare of the state, will not permit citizens to oppose a prince whenever his commands appear to them unjust or prejudicial. This would be falling back into the state of nature, and rendering government impossible. A subject ought patiently to suffer from the prince, doubtful wrongs, and wrongs that are supportable,—the former, because whoever has submitted to the decision of a judge, is no longer capable of deciding his own pretensions; and as to those that are supportable, they ought to be sacrificed to the peace and safety of the state, on account of the great advantages obtained by living in society. It is presumed, as matter of course, that every citizen has tacitly engaged to observe this moderation; because, without it, society could not exist. But when the injuries are manifest and atrocious,— when a prince, without any apparent reason, attempts to deprive us of life, or of those things, the loss of which would render life irksome,— who can dispute our right to resist him? Self-preservation is not only a natural right, but an obligation imposed by nature, and no man can entirely and absolutely renounce it. And though he might give it up, can he be considered as having done it by his political engagements, since he entered into society only to establish his own safety upon a more solid basis? The welfare of society does not require such a sacrifice; and, as Barbeyrac well observes in his notes on Grotius, “If the public interest requires, that those who obey should suffer some inconvenience, it is no less for the public interest that those who command, should be afraid of driving their patience to the utmost extremity.” The prince who violates all laws,—who no longer observes any measures,—and who would in his transports of fury take away the life of an innocent person,— divests himself of his character, and is no longer to be considered in any other light than that of an unjust and outrageous enemy, against whom his people are allowed to defend themselves. The person of the sovereign is sacred and inviolable: but he who, after having lost all the sentiments of a sovereign, divests himself even of the appearances and exterior conduct of a monarch, degrades himself: he no longer retains the sacred character of a sovereign, and cannot retain the prerogatives attached to that exalted rank. However, if this prince is not a monster,—if he is furious only against us in particular, and from the effects of a sudden transport or a violent passion, and is supportable to the rest of the nation,—the respect we ought to pay to the 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 concealed, to secure himself from Saul’s fury,— and more than once spared the life of his persecutor. When the reason of Charles VI. of France was suddenly disordered by a fatal accident, he in his fury killed several of those who surrounded him: none of them thought of securing his own life at the expense of that of the king; they only endeavoured to disarm and secure him. They did their duty like men of honour and faithful subjects, in exposing their lives, to save that of this unfortunate monarch: such a sacrifice is due to the state and to sovereign majesty: furious from the derangement of his faculties, Charles was not guilty; he might recover his health, and again become a good king.

§55. Of ministers.What has been said is sufficient for the intention of this work: the reader may see these questions treated more at large in many books that are well known. We shall conclude this subject with an important observation. A sovereign is undoubtedly allowed to employ ministers to ease him in the painful offices of government; but he ought never to surrender his authority to them. When a nation chuses a conductor, it is not with a view that he should deliver up his charge into other hands. Ministers ought only to be instruments in the hands of the prince; he ought constantly to direct them, and continually endeavour to know whether they act according to his intentions. If the imbecillity of age, or any infirmity, render him incapable of governing, a regent ought to be nominated, according to the laws of the state: but when once the sovereign is capable of holding the reins, let him insist on being served, but never suffer himself to be superseded. The last kings of France of the first race surrendered 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 crowning an all-powerful minister; for he will improve that soil as his own inheritance, which he plundered whilst he only reaped precarious advantages from it.

CHAPTER V

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

§56. Of elective states.We have seen in the preceding chapter, that it originally belongs to a nation to confer the supreme authority, and to chuse the person by whom it is to be governed. If it confers the sovereignty on him for his own person only, reserving to itself the right of chusing a successor after the sovereign’s death, the state is elective. As soon as the prince is elected according to the laws, he enters into the possession of all the prerogatives which those laws annex to his dignity.

§57. Whether elective kings are real sovereigns.It has been debated, whether elective kings and princes are real sovereigns. But he who lays any stress on this circumstance must have only a very confused idea of sovereignty. The manner in which a prince obtains his dignity has nothing to do with determining its nature. We must consider, first, whether the nation itself forms an independent society (see chap. I.), and secondly, what is the extent of the power it has intrusted to the prince. Whenever the chief of an independent state really represents his nation, he ought to be considered as a true sovereign (§40), even though his authority should be limited in several respects.

§58. Of successive and hereditary states.When a nation would avoid the troubles which seldom fail to accompany the election of a sovereign, it makes its choice for a long succession of years, by establishing the The origin of the right of succession.right of succession, or by rendering the crown hereditary in a family, according to the order and rules that appear most agreeable to that nation. The name of an Hereditary State or Kingdom is given to that where the successor is appointed by the same law that regulates the successions of individuals. The Successive Kingdom is that where a person succeeds according to a particular fundamental law of the state. Thus the lineal succession, and of males alone, is established in France.

§59. Other origins of this right.The right of succession is not always the primitive establishment of a nation; it may have been introduced by the concession of another sovereign, and even by usurpation. But when it is supported by long possession, the people are considered as consenting to it; and this tacit consent renders it lawful, though the source be vicious. It rests then on the foundation we have already pointed out,—a foundation that alone is lawful and incapable of being shaken, and to which we must ever revert.

§60. Other sources which still amount to the same thing.The same right, according to Grotius and the generality of writers, may be derived from other sources, as conquest, or the right of a proprietor, who, being master of a country, should invite inhabitants to settle there, and give them lands, on condition of their acknowledging him and his heirs for their sovereigns. But as it is absurd to suppose that a society of 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 ultimately amounts to the same thing; and it must still be said that the succession is established by the express will or the tacit consent of the nation, for the welfare and safety of the state.

§61. A nation may change the order of the succession.It thus remains an undeniable truth, that in all cases the succession is established or received only with a view to the public welfare and the general safety. If it happened then that the order established in this respect became destructive to the state, the nation would certainly have a right to change it by a new law. Salus populi suprema lex,—the safety of the people is the supreme law; and this law is agreeable to the strictest justice,—the people having united in society only with a view to their safety and greater advantage.

This pretended proprietory right attributed to princes is a chimera produced by an abuse which its supporters would fain make of the laws respecting private inheritances. The state neither is nor can be a patrimony, since the end of patrimony is the advantage of the possessor, whereas the prince is established only for the advantage of the state. The consequence is evident: if the nation plainly perceives that the heir of her prince would be a pernicious sovereign, she has a right to exclude him.

The authors whom we oppose, grant this right to a despotic prince, while they refuse it to nations. This is because they consider such a prince as a real proprietor of the empire, and will not acknowledge that the care of their own safety, and the right to govern themselves, still essentially belong to the society, although they have intrusted them, even without any express reserve, to a monarch and his heirs. In their opinion, the kingdom is the inheritance of the prince, in the same manner as his field and his flocks,—a maxim injurious to human nature, and which they would not have dared to advance in an enlightened age, if it had not the support of an authority which too often proves stronger than reason and justice.

§62. Of renunciations.A nation may, for the same reason, oblige one branch who removes to another country, to renounce all claim to the crown, as a daughter who marries a foreign prince. These renunciations, required or approved by the state, are perfectly valid, since they are equivalent to a law that such persons and their posterity should be excluded from the throne. Thus the laws of England have for ever rejected every Roman Catholic. “Thus a law of Russia, made at the beginning of the reign of Elizabeth, most wisely excludes from the possession of the crown every heir possessed of another monarchy; and thus the law of Portugal disqualifies every foreigner who lays claim to the crown by right of blood.”

Some celebrated authors, in other respects very learned and judicious, have then deviated from the true principles in treating of renunciations. They have largely expatiated on the rights of children born or to be born, of the transmission of those rights, &c. But they ought to have considered the succession, less as a property of the reigning family, than as a law of the state. From this clear and incontestable principle we easily deduce the whole doctrine of renunciations. Those required or approved by the state are valid and sacred: they are fundamental laws:—those not authorised by the state can only be obligatory on the prince who made them. They cannot injure his posterity; and he himself may recede from them in case the state stands in need of him and gives him an invitation: for he owes his services to a people who had committed their safety to his care. For the same reason, the prince cannot lawfully resign at an unseasonable juncture, to the detriment of the state, and abandon in imminent danger a nation that had put itself under his care.

§63. The order of succession ought commonly to be kept.In ordinary cases, when the state may follow the established rule without being exposed to very great and manifest danger, it is certain that every descendent ought to succeed when the order of succession calls him to the throne, however great may appear his incapacity to rule by himself. This is a consequence of the spirit of the law that established the succession: for the people had recourse to it, only to prevent the troubles which would otherwise be almost inevitable at every change. Now little advances would have been made towards obtaining this end, if, at the death of a prince, the people were allowed to examine the capacity of his heir, before they acknowledged him for their sovereign. “What a door would this open for usurpers or malcontents!—It was to avoid these inconveniences that the order of succession was established; and nothing more wise could have been done; since by this means no more is required than his being the king’s son, and his being actually alive,—which can admit of no dispute: but on the other hand there is no rule fixed to judge of the capacity or incapacity to reign.” Though the succession was not established for the particular advantage of the sovereign and his family, but for that of the state, the heir apparent has nevertheless a right, to which justice requires that regard should be paid. His right is subordinate to that of the nation, and to the safety of the state; but it ought to take place when the public welfare does not oppose it.

§64. Of regents.These reasons have the greater weight, since the law or the state may remedy the incapacity of the prince by nominating a regent, as is practised in cases of minority. This regent is, during the whole time of his administration, invested with the royal authority; but he exercises it in the king’s name.

§65. Indivisibility of sovereignties.The principles we have just established respecting the successive or hereditary right, manifestly shew that a prince has no right to divide his state among his children. Every sovereignty, properly so called, is, in its own nature, one, and indivisible, since those who have united in society cannot be separated in spite of themselves. Those partitions, so contrary to the nature of sovereignty and the preservation of states, have been much in use: but an end has been put to them, wherever the people, and princes themselves, have had a clear view of their greatest interest, and the foundation of their safety.

But when a prince has united several different nations under his authority, his empire is then properly an assemblage of several societies subject to the same head; and there exists no natural objection to his dividing them among his children: he may distribute them, if there be neither law nor compact to the contrary, and if each of those nations consents to receive the sovereign he appoints for it. For this reason France was divisible under the two first races. But being entirely consolidated under the third, it has since been considered as a single kingdom,—it has become indivisible,—and a fundamental law has declared it so. That law, wisely providing for the preservation and splendour of the kingdom, irrevocably unites to the crown all the acquisitions of its kings.

§66. Who are to decide disputes respecting the succession to a sovereignty.The same principles will also furnish us with the solution of a celebrated question. When the right of succession becomes uncertain in a successive or hereditary state, and two or three competitors lay claim to the crown,—it is asked, Who shall be the judge of their pretensions? Some learned men, resting on the opinion that sovereigns are subject to no other judge but God, have maintained that the competitors for the crown, while their right remains uncertain, ought either to come to an amicable compromise,—enter into articles among themselves,—chuse arbitrators,—have recourse even to the drawing of lots,—or, finally, determine the dispute by arms; and that the subjects cannot in any manner decide the question. One might be astonished that celebrated authors should have maintained such a doctrine. But since, even in speculative philosophy, there is nothing so absurd as not to have been advanced by one or other of the philosophers, what can be expected from the human mind, when seduced by interest or fear? What! in a question that concerns none so much as the nation,—that relates to a power established only with a view to the happiness of the people,—in a quarrel that is to decide for ever their dearest interests, and their very safety,— are they to stand by as unconcerned spectators? Are they to allow strangers, or the blind decision of arms, to appoint them a master, as a flock of sheep are to wait till it be determined whether they are to be delivered up to the butcher, or restored to the care of their shepherd?

But, say they, the nation has divested itself of all jurisdiction, by giving itself up to a sovereign; it has submitted to the reigning family; it has given to those who are descended from that family a right which nobody can take from them; it has established them its superiors, and can no longer judge them. Very well! But does it not belong to that same nation to acknowledge the person to whom its duty binds it, and prevent its being delivered up to another? And since it has established the law of succession, who is more capable or has a better right to identify the individual whom the fundamental law had in view, and has pointed out as the successor? We may affirm, then, without hesitation, that the decision of this grand controversy belongs to the nation, and to the nation alone. Even if the competitors have agreed among themselves, or have chosen arbitrators, the nation is not obliged to submit to their regulations, unless it has consented to the transaction or compromise,— princes not acknowledged, and whose right is uncertain, not being in any manner able to dispose of its obedience. The nation acknowledges no superior judge in an affair that relates to its most sacred duties, and most precious rights.

Grotius and Puffendorff differ in reality but little from our opinion; but would not have the decision of the people or state called a juridical sentence (judicium jurisdictionis). Well! be it so: we shall not dispute about words. However, there is something more in the case than a mere examination of the competitors’ rights, in order to submit to him who has the best. All the disputes that arise in society are to be judged and decided by the public authority. As soon as the right of succession is found uncertain, the sovereign authority returns for a time to the body of the state, which is to exercise it, either by itself, or by its representatives, till the true sovereign be known. “The contest on this right suspending the functions in the person of the sovereign, the authority naturally returns to the subjects, not for them to retain it, but to prove on which of the competitors it lawfully devolves, and then to commit it to his hands. It would not be difficult to support, by an infinite number of examples, a truth so evident by the light of reason: it is sufficient to remember that the states of France, after the death of Charles the Fair, terminated the famous dispute between Philip de Valois and the king of England (Edward III.), and that those states, though subject to him in whose favour they granted the decision, were nevertheless the judges of the dispute.”

Guicciardini, book XII. also shews that it was the states of Arragon that decided the succession to that kingdom, in favour of Ferdinand, grandfather of Ferdinand the husband of Isabella queen of Castile, in preference to the other relations of Martin king of Arragon, who asserted that the kingdom belonged to them.

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 succession to the sovereignty. In the year 1707, they decided between a great number of competitors, and their decision in favour of the king of Prussia was acknowledged by all Europe in the treaty of Utrecht.

§67. That the right to the succession ought not to depend on the judgment of a foreign power.The better to secure the succession in a certain and invariable order, it is at present an established rule in all Christian states (Portugal excepted) that no descendent of the sovereign can succeed to the crown, unless he be the issue of a marriage that is conformable to the laws of the country. As the nation has established the succession, to the nation alone belongs the power of acknowledging those who are capable of succeeding; and consequently, on its judgment and laws alone must depend the validity of the marriage of its sovereigns, and the legitimacy of their birth.

If education had not the power of familiarising the human mind to the greatest absurdities, is there any man of sense who would not be struck with astonishment to see so many nations suffer the legitimacy and right of their princes to depend on a foreign power? The court of Rome has invented an infinite number of obstructions and cases of invalidity in marriages, and at the same time arrogates to itself the right of judging of their validity, and of removing the obstructions; so that a prince of its communion cannot in certain cases be so much his own master, as to contract a marriage necessary to the safety of the state. Jane, the only daughter of Henry IV. king of Castile, found this true by cruel experience. Some rebels published abroad that she owed her birth to Bertrand de la Cueva, the king’s favourite; and notwithstanding the declarations and last will of that prince, who explicitly and invariably acknowledged Jane for his daughter, and nominated her his heiress, they called to the crown Isabella, Henry’s sister, and wife to Ferdinand heir of Arragon. The grandees of Jane’s party had provided her a powerful resource, by negotiating a marriage between her and Alphonsus king of Portugal: but as that prince was Jane’s uncle, it was necessary to obtain a dispensation from the pope; and Pius II. who was in the interest of Ferdinand and Isabella, refused to grant the dispensation, though such alliances were then very common. These difficulties cooled the ardour of the Portuguese monarch, and abated the zeal of the faithful Castilians. Every thing succeeded with Isabella, and the unfortunate 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 reformation had not been happily established, when the pope presumed to declare Queen Elizabeth illegitimate, and incapable of wearing the crown?

A great emperor, Lewis of Bavaria, boldly asserted the rights of his crown in this respect. In the diplomatic code of the law of nations by Leibnitz, we find two acts, in which that prince condemns, as an invasion of the imperial authority, the doctrine that attributes to any other power but his own, the right of granting dispensations, and of judging of the validity of marriages, in the places under his jurisdiction: but he was neither well supported in his life-time, nor imitated by his successors.

§68. Of states called patrimonial.Finally, there are states whose sovereign may chuse his successor, and even transfer the crown to another during his life: these are commonly called patrimonial kingdoms or states: but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shewn (§61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to receive, if he thinks proper, another sovereign from his hands. Thus we see that Peter I. em-peror of Russia, nominated his wife to succeed him, though he had children.

§69. Every true sovereignty is unalienable.But when a prince chuses his successor, or when he cedes the crown to another,—properly speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, intrusted— he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. Every true sovereignty is, in its own nature, unalienable. We shall be easily convinced of this, if we pay attention to the origin and end of political society, and of the supreme authority. A nation becomes incorporated into a society, to labour for the common welfare as it shall think proper, and to live according to its own laws. With this view it establishes a public authority. If it intrusts that authority to a prince, even with the power of transferring it to other hands, this can never take place without the express and unanimous consent of the citizens, with the right of really alienating or subjecting the state to another body politic: for the individuals who have formed this society, entered into it in order to live in an independent state, and not under a foreign yoke. Let not any other source of this right be alleged in objection to our argument, as conquest, for instance; for we have already shewn (§60) that these different sources ultimately revert to the true principles on which all just governments are founded. While the victor does not treat his conquest according to those principles, the state of war still in some measure subsists: but the moment he places it in a civil state, his rights are proportioned by the principles of that state.

I know that many authors, and particularly Grotius, give long enumerations of the alienations of sovereignties. But the examples often prove only the abuse of power, not the right. And besides, the people consented to the alienation, either willingly or by force. What could the inhabitants of Pergamus, Bithynia, and Cyrene do, when their kings gave them, by their last wills, to the Roman people? Nothing remained for them, but to submit with a good grace to so powerful a legatee. To furnish an example capable of serving as an authority, they should have produced an instance of a people resisting a similar bequest of their sovereign, and whose resistance had been generally condemned as unjust and rebellious. Had Peter I. who nominated his wife to succeed him, attempted to subject his empire to the grand signor, or to some other neighbouring power, can we imagine that the Russians would have suffered it, or that their resistance would have passed for a revolt? We do not find in Europe any great state that is reputed alienable. If some petty principalities have been considered as such, it is because they were not true sovereignties. They were fiefs of the em-pire, enjoying a greater or lesser degree of liberty: their masters made a traffic of the rights they possessed over those territories: but they could not withdraw them from a dependence on the empire.

Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, the right of really alienating the state can never belong to the sovereign, unless it be expressly given him by the entire body of the people. Neither are we to presume that he possesses a right to nominate his successor or surrender the sceptre to other hands,—a right which must be founded on an express consent, on a law of the state, or on long custom, justified by the tacit consent of the people.

§70. Duty of a prince who is empowered to nominate his successor.If the power of nominating his successor is intrusted to the sovereign, he ought to have no other view in his choice, but the advantage and safety of the state. He himself was established only for this end (§39); the liberty of transferring his power to another could then be granted to him only with the same view. It would be absurd to consider it as a prerogative useful to the prince, and which he may turn to his own private advantage. Peter the Great proposed only the welfare of the empire when he left the crown to his wife. He knew that heroine to be the most capable person to follow his views, and perfect the great things he had begun, and therefore preferred her to his son, who was still too young. If we often found on the throne such elevated minds as Peter’s, a nation could not adopt a wiser plan in order to ensure to itself a good government, than to 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 Roman emperors who had no male children appointed a successor by adoption. To this custom Rome was indebted for a series of sovereigns unequalled in history,—Nerva, Trajan, Adrian, Antoninus, Marcus Aurelius,—what princes! Does the right of birth often place such on the throne?

§71. He must have at least a tacit ratification.We may go still farther, and boldly assert, that, as the safety of the whole nation is deeply interested in so important a transaction, the consent and ratification of the people or state is necessary to give it full and entire effect,—at least their tacit consent and ratification. If an emperor of Russia thought proper to nominate for his successor a person notoriously unworthy of the crown, it is not at all probable that vast empire would blindly submit to so pernicious an appointment. And who shall presume to blame a nation for refusing to run headlong to ruin out of respect to the last orders of its prince? As soon as the people submit to the sovereign appointed to rule over them, they tacitly ratify the choice made by the last prince; and the new monarch enters into all the rights of his predecessor.

CHAPTER VI

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

§72. The object of society points out the duties of the sovereign.After these observations on the constitution of the state, let us now proceed to the principal objects of a good government. We have seen above (§§41 and 42) that the prince, on his being invested with the sovereign authority, is charged with the duties of the nation in relation to government. In treating of the principal objects of a wise administration, we at once shew the duties of a nation towards itself, and those of the sovereign towards his people.

A wise conductor of the state will find in the objects of civil society the general rule and indication of his duties. The society is established with the view of procuring, to those who are its members, the necessaries, conveniences, and even pleasures of life, and, in general, every thing necessary to their happiness,—of enabling each individual peaceably to enjoy his own property, and to obtain justice with safety and certainty,—and, finally, of defending themselves in a body against all external violence (§15). He ought to procure plenty.The nation, or its conductor, should first apply to the business of providing for all the wants of the people, and producing a happy plenty of all the necessaries of life, with its conveniences, and innocent and laudable enjoyments. As an easy life without luxury contributes to the happiness of men, it likewise enables them to labour with greater safety and success after their own perfection, which is their grand and principal duty, and one of the ends they ought to have in view when they unite in society.

§73.To take care that there be a sufficient number of workmen.To succeed in procuring this abundance of every thing, it is necessary to take care that there be a sufficient number of able workmen in every useful or necessary profession. An attentive application on the part of government, wise regulations, and assistance properly granted, will produce this effect, without using constraint, which is always fatal to industry.

§74. To prevent the emigration of those that are useful.Those workmen that are useful ought to be retained in the state; to succeed in retaining them, the public authority has certainly a right to use constraint, if necessary. Every citizen owes his personal services to his country; and a mechanic, in particular, who has been reared, educated, and instructed in its bosom, cannot lawfully leave it, and carry to a foreign land that industry which he acquired at home, unless his country has no occasion for him, or he cannot there obtain the just fruit of his labour and abilities. Employment must then be procured for him; and if, while able to obtain a decent livelihood in his own country, he would without reason abandon it, the state has a right to detain him. But a very moderate use ought to be made of this right, and only in important or necessary cases. Liberty is the soul of abilities and industry: frequently a mechanic or an artist, after having long travelled abroad, is attracted home to his native soil by a natural affection, and returns more expert and better qualified to render his country useful services. If certain extraordinary cases be excepted, it is best in this affair to practise the mild methods of protection, encouragement, &c. and to leave the rest to that natural love felt by all men for the places of their birth.

§75. Emissaries who entice them away.As to those emissaries who come into a country to entice away useful subjects, the sovereign has a right to punish them severely, and has just cause of complaint against the power by whom they are employed.

In another place, we shall treat more particularly of the general question, whether a citizen be permitted to quit the society of which he is a member. The particular reasons concerning useful workmen are sufficient here.

§76. Labour and industry must be encouraged.The state ought to encourage labour, to animate industry, to excite abilities, to propose honours, rewards, privileges, and so to order matters that every one may live by his industry. In this particular, England deserves to be held up as an example. The parliament incessantly attends to these important affairs, in which neither care nor expense is spared. And do we not even see a society of excellent citizens formed with this view, and devoting considerable sums to this use? Premiums are also distributed in Ireland to the mechanics who most distinguish themselves in their profession. Can such a state fail of being powerful and happy?

CHAPTER VII

Of the Cultivation of the Soil.

§77. The utility of tillage.Of all the arts, tillage, or agriculture, is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase; it forms the surest resource, and the most solid fund of riches and commerce, for a nation that enjoys a happy climate.

§78. Regulations necessary in this respect—This object then deserves the utmost attention of the government. The sovereign ought to neglect no means of rendering the land under his jurisdiction as well cultivated as possible. He ought not to allow either communities or private persons to acquire large tracts of land, and leave them uncultivated.For the distribution of land. Those rights of common, which deprive the proprietor of the free liberty of disposing of his land,—which will not allow him to inclose and cultivate it in the most advantageous manner,— those rights, I say, are inimical to the welfare of the state, and ought to be suppressed, or reduced to just bounds. Notwithstanding the introduction of private property among the citizens, the nation has still a right to take the most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible.

§79. For the protection of husbandmen.The government ought carefully to avoid every thing capable of discouraging the husbandman, or of diverting him from the labours of agriculture. Those taxes,—those excessive and ill-proportioned impositions, the burthen of which falls almost entirely on the cultivators,— and the oppressions they suffer from the officers who levy them,— deprive the unhappy peasant of the means of cultivating the earth, and depopulate the country. Spain is the most fertile and the worst cultivated country in Europe. The church there possesses too much land; and the contractors for the royal magazines, being authorised to purchase at a low price all the corn they find in the possession of a peasant, above what is necessary for the subsistence of himself and his family, so greatly discourage the husbandman, that he sows no more corn than is barely necessary for the support of his own household. Hence the frequent scarcity in a country capable of feeding its neighbours.

§80. Husbandry ought to be placed in an honourable light.Another abuse injurious to agriculture is the contempt cast upon the husbandman. The tradesmen in cities,—even the most servile mechanics,—the idle citizens,—consider him that cultivates the earth with a disdainful eye: they humble and discourage him: they dare to despise a profession that feeds the human race,—the natural employment of man. A little insignificant haberdasher, a tailor, places far beneath him the beloved employment of the first consuls and dictators of Rome! China has wisely prevented this abuse: agriculture is there held in honour; and to preserve this happy mode of thinking, the emperor himself, followed by his whole court, annually, on a solemn day, sets his hand to the plough, and sows a small piece of land. Hence China is the best cultivated country in the world: it feeds an immense multitude of inhabitants who at first sight appear to the traveller too numerous for the space they occupy.

§81. The cultivation of the soil, a natural obligation.The cultivation of the soil deserves the attention of the government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind. The whole earth is destined to feed its inhabitants; but this it would be incapable of doing, if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share; and it has no right to enlarge its boundaries, or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries. Those nations (such as the ancient Germans, and some modern Tartars), who inhabit fertile countries, but disdain to cultivate their lands, and chuse rather to live by plunder, are wanting to themselves, are injurious to all their neighbours, and deserve to be extirpated as savage and pernicious beasts. There are others, who, to avoid labour, chuse to live only by hunting, and their flocks. This might, doubtless, be allowed in the first ages of the world, when the earth, without cultivation, produced more than was sufficient to feed its small number of inhabitants. But at present, when the human race is so greatly multiplied, it could not subsist if all nations were disposed to live in that manner. Those who still pursue this idle mode of life, usurp more extensive territories than, with a reasonable share of labour, they would have occasion for, and have therefore no reason to complain, if other nations, more industrious, and too closely confined, come to take possession of a part of those lands. Thus, though the conquest of the civilised empires of Peru and Mexico was a notorious usurpation, the establishment of many colonies on the continent of North America might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them.

§82. Of public granaries.The establishment of public granaries is an excellent regulation for preventing scarcity. But great care should be taken to prevent their being managed with a mercantile spirit, and with views of profit. This would be establishing a monopoly, which would not be the less unlawful, for its being carried on by the magistrate. These granaries should be filled in times of the greatest plenty, and take off the corn that would lie on the husbandman’s hands, or be carried in too great quantities to foreign countries: they should be opened when corn is dear, and keep it at a reasonable price. If in a time of plenty they prevent that necessary commodity from easily falling to a very low price, this inconvenience is more than compensated by the relief they afford in times of dearth: or rather, it is no inconvenience at all: for, when corn is sold extremely cheap, the manufacturer, in order to obtain a preference, is tempted to undersell his neighbours, by offering his goods at a price which he is afterwards obliged to raise (and this produces great disorders in commerce, by putting it out of its course); or he accustoms himself to an easy life, which he cannot support in harder times. It would be of advantage to manufactures and to commerce to have the subsistence of workmen regularly kept at a moderate and nearly equal price. In short, public granaries keep in the state quantities of corn that would be sent abroad at too cheap a rate, and must be purchased again, and brought back at a very great expense after a bad harvest; which is a real loss to the nation. These establishments, however, do not hinder the corn trade. If the country, one year with another, produces more than is sufficient for the support of her inhabitants, the superfluity will still be sent abroad; but it will be sent at a higher and fairer price.

CHAPTER VIII

Of Commerce.

§83. Of home and foreign trade.It is commerce that enables individuals and whole nations to procure those commodities which they stand in need of, but cannot find at home. Commerce is divided into home and foreign trade. The former is that carried on in the state between the several inhabitants; the latter is carried on with foreign nations.

§84. Utility of the home trade.The home trade of a nation is of great use; it furnishes all the citizens with the means of procuring whatever they want, as either necessary, useful, or agreeable: it causes a circulation of money, excites industry, animates labour, and, by affording subsistence to a great number of people, contributes to increase the population and power of the state.

§85. Utility of foreign trade.The same reasons shew the use of foreign trade, which is moreover attended with these two advantages:—1. By trading with foreigners, a nation procures such things as neither nature nor art can furnish in the country it occupies. And secondly, if its foreign trade be properly directed, it increases the riches of the nation, and may become the source of wealth and plenty. Of this the example of the Carthaginians among the ancients, and that of the English and Dutch among the moderns, afford remarkable proofs. Carthage, by her riches, counter-balanced the fortune, courage, and greatness of Rome. Holland has amassed immense sums in her marshes; a company of her merchants possesses whole kingdoms in the East, and the governor of Batavia exercises command over the monarchs of India. To what a degree of power and glory is England arrived! Formerly her warlike princes and inhabitants made glorious conquests which they afterwards lost by those reverses of fortune so frequent in war: at present, it is chiefly commerce that places in her hand the balance of Europe.

§86. Obligation to cultivate the home trade.Nations are obliged to cultivate the home trade,—first, because it is clearly demonstrated from the law of nature, that mankind ought mutually to assist each other, and, as far as in their power, contribute to the perfection and happiness of their fellow-creatures: whence arises, after the introduction of private property, the obligation to resign to others, at a fair price, those things which they have occasion for, and which we do not destine for our own use. Secondly, society being established with the view that each may procure whatever things are necessary to his own perfection and happiness,—and a home trade being the means of obtaining them,—the obligations to carry on and improve this trade are derived from the very compact on which the society was formed. Finally, being advantageous to the nation, it is a duty the people owe to themselves, to make this commerce flourish.

§87. Obligation to carry on foreign trade.For the same reason, drawn from the welfare of the state, and also to procure for the citizens every thing they want, a nation is obliged to promote and carry on a foreign trade. Of all the modern states, England is most distinguished in this respect. The parliament have their eyes constantly fixed on this important object; they effectually protect the navigation of the merchants, and, by considerable bounties, favour the exportation of superfluous commodities and merchandises. In a very sensible production, may be seen the valuable advantages that kingdom has derived from such judicious regulations.

§88. Foundation of the laws of commerce.Let us now see what are the laws of nature and the rights of nations in respect to the commerce they carry on with each other. Men are obliged mutually to assist each other as much as possible, and to contribute to the perfection and happiness of their fellow-creatures (Prelim. §10); whence it follows, as we have said above (§86), that, after the introduction of private property, it became a duty to sell to each other at a fair price what the possessor himself has no occasion for, and what is necessary to others; because, since that introduction of private property, no one can by any other means procure the different things that may be necessary or useful to him, and calculated to render life pleasant and agreeable. Right of buying.Now, since right springs from obligation (Prelim. §3), the obligation which we have just established gives every man the right of procuring the things he wants, by purchasing them at a reasonable price from those who have themselves no occasion for them.

We have also seen (Prelim. §5) that men could not free themselves from the authority of the laws of nature by uniting in civil society, and that the whole nation remains equally subject to those laws in its national capacity; so that the natural and necessary law of nations is no other than the law of nature properly applied to nations or sovereign states (Prelim. §6): from all which it follows, that a nation has a right to procure, at an equitable price, whatever articles it wants, by purchasing them of other nations who have no occasion for them. This is the foundation of the right of commerce between different nations, and, in particular, of the right of buying.

§89. Right of selling.We cannot apply the same reasoning to the right of selling such things as we want to part with. Every man and every nation being perfectly at liberty to buy a thing that is to be sold, or not to buy it, and to buy it of one rather than of another,—the law of nature gives to no person whatsoever any kind of right to sell what belongs to him to another who does not wish to buy it; neither has any nation the right of selling her commodities or merchandise to a people who are unwilling to have them.

§90. Prohibition of foreign merchandises.Every state has consequently a right to prohibit the entrance of foreign merchandises; and the nations that are affected by such prohibition have no right to complain of it, as if they had been refused an office of humanity. Their complaints would be ridiculous, since their only ground of complaint would be, that a profit is refused to them by that nation, who does not chuse they should make it at her expense. It is, however, true, that if a nation was very certain that the prohibition of her merchandises was not founded on any reason drawn from the welfare of the state that prohibited them, she would have cause to consider this conduct as a mark of ill-will shewn in this instance, and to complain of it on that footing. But it would be very difficult for the excluded nation to judge with certainty that the state had no solid or apparent reason for making such a prohibition.

§91. Nature of the right of buying.By the manner in which we have shewn a nation’s right to buy of another what it wants, it is easy to see that this right is not one of those called perfect, and that are accompanied with a right to use constraint. Let us now distinctly explain the nature of a right which may give room for disputes of a very serious nature. You have a right to buy of others such things as you want, and of which they themselves have no need; you make application to me: I am not obliged to sell them to you, if I myself have any occasion for them. In virtue of the natural liberty which belongs to all men, it is I who am to judge whether I have occasion for them myself, or can conveniently sell them to you; and you have no right to determine whether I judge well or ill, because you have no authority over me. If I, improperly, and without any good reason, refuse to sell you at a fair price what you want, I offend against my duty: you may complain of this; but you must submit to it; and you cannot attempt to force me, without violating my natural right, and doing me an injury. The right of buying the things we want is then only an imperfect right, like that of a poor man to receive alms of the rich man; if the latter refuses to bestow it, the poor man may justly complain; but he has no right to take it by force.

If it be asked, what a nation has a right to do in case of extreme necessity,—this question will be answered in its proper place in the following book, Chap. IX.

§92. Every nation is to chuse how far it will engage in commerce.Since then a nation cannot have a natural right to sell her merchandises to another that is unwilling to purchase them,—since she has only an imperfect right to buy what she wants of others,—since it belongs only to these last to judge whether it be proper for them to sell or not— and, finally, since commerce consists in mutually buying and selling all sorts of commodities,—it is evident that it depends on the will of any nation to carry on commerce with another, or to let it alone. If she be willing to allow this to one, it depends on the nation to permit it under such conditions as she shall think proper. For in permitting another nation to trade with her, she grants that other a right; and every one is at liberty to affix what conditions he pleases to a right which he grants of his own accord.

§93. How a nation acquires a perfect right to a foreign trade.Men and sovereign states may, by their promises, enter into a perfect obligation with respect to each other, in things where nature has imposed only an imperfect obligation. A nation, not having naturally a perfect right to carry on a commerce with another, may procure it by an agreement or treaty. This right is then acquired only by treaties, and relates to that branch of the law of nations termed conventional (Prelim. §24). The treaty that gives the right of commerce, is the measure and rule of that right.

§94. Of the simple permission of commerce.A simple permission to carry on commerce with a nation gives no perfect right to that commerce. For if I merely and simply permit you to do any thing, I do not give you any right to do it afterwards in spite of me:—you may make use of my condescension as long as it lasts; but nothing prevents me from changing my will. As then every nation has a right to chuse whether she will or will not trade with another, and on what conditions she is willing to do it (§92),—if one nation has for a time permitted another to come and trade in the country, she is at liberty, whenever she thinks proper, to prohibit that commerce,—to restrain it,—to subject it to certain regulations; and the people who before carried it on cannot complain of injustice.

Let us only observe, that nations, as well as individuals, are obliged to trade together for the common benefit of the human race, because mankind stand in need of each other’s assistance (Prelim. §§10, 11, and Book I. §88): still however, each nation remains at liberty to consider, in particular cases, whether it be convenient for her to encourage, or permit commerce; and as our duty to ourselves is paramount to our duty to others,—if one nation finds herself in such circumstances, that she thinks foreign commerce dangerous to the state, she may renounce and prohibit it. This the Chinese have done for a long time together. But, again, it is only for very serious and important reasons that her duty to herself should dictate such a reserve; otherwise, she could not refuse to comply with the general duties of humanity.

§95. Whether the laws relating to commerce are subject to prescription.We have seen what are the rights that nations derive from nature with regard to commerce, and how they may acquire others by treaties:—let us now examine whether they can found any on long custom. To determine this question in a solid manner, it is necessary first to observe, that there are rights which consist in a simple power: they are called in Latin, jura merae facultatis, rights of mere ability. They are such in their own nature, that he who possesses them may use them or not, as he thinks proper,—being absolutely free from all restraint in this respect; so that the actions that relate to the exercise of these rights, are acts of mere free will, that may be done or not done according to pleasure. It is manifest that rights of this kind cannot be lost by prescription on account of their not being used, since prescription is only founded on consent legitimately presumed; and that, if I possess a right which is of such a nature that I may or may not use it as I think proper, without any person having a right to prescribe to me on the subject, it cannot be presumed, from my having long forborne to use it, that I therefore intend to abandon it. This right is then imprescriptible, unless I have been forbidden or hindered from making use of it, and have obeyed with sufficient marks of consent. Let us suppose, for instance, that I am entirely at liberty to grind my corn at any mill I please, and that during a very considerable time, a century if you please, I have made use of the same mill:—as I have done in this respect what I thought proper, it is not to be presumed, from this long-continued use of the same mill, that I meant to deprive myself of the right of grinding at any other; and consequently, my right cannot be lost by prescription. But now suppose, that, on my resolving to make use of another mill, the owner of the former opposes it, and announces to me a prohibition;—if I obey his prohibition without necessity, and without opposition, though I have it in my power to defend myself, and know my right, this right is lost, because my conduct affords grounds for a legitimate presumption that I chose to abandon it.—Let us apply these principles.—Since it depends on the will of each nation to carry on commerce with another, or not to carry it on, and to regulate the manner in which it chuses to carry it on (§92), the right of commerce is evidently a right of mere ability (jus merae facultatis), a simple power,—and consequently is imprescriptible. Thus, although two nations have traded together, without interruption, during a century, this long usage does not give any right to either of them; nor is the one obliged on this account to suffer the other to come and sell its merchandises, or to buy others:—they both preserve the double right of prohibiting the entrance of foreign merchandise, and of selling their own wherever people are willing to buy them. Although the English have from time immemorial been accustomed to get wine from Portugal, they are not on that account obliged to continue the trade, and have not lost the liberty of purchasing their wines elsewhere. Although they have, in the same manner, been long accustomed to sell their cloth in that kingdom, they have, nevertheless, a right to transfer that trade to any other country: and the Portuguese, on their part, are not obliged by this long custom, either to sell their wines to the English, or to purchase their cloths. If a nation desires any right of commerce which shall no longer depend on the will of another, she must acquire it by treaty.

§96. Imprescriptibility of rights founded on treaty.What has been just said may be applied to the rights of commerce acquired by treaties. If a nation has by this method procured the liberty of selling certain merchandises to another, she does not lose her right, though a great number of years are suffered to elapse without its being used; because this right is a simple power, jus merae facultatis, which she is at liberty to use or not, whenever she pleases.

Certain circumstances, however, may render a different decision necessary, because they imply a change in the nature of the right in question. For instance, if it appears evident, that the nation granting this right granted it only with the view of procuring a species of merchandise of which she stands in need,—and if the nation which obtained the right of selling, neglects to furnish those merchandises, and another offers to bring them regularly, on condition of having an exclusive privilege,—it appears certain that the privilege may be granted to the latter. Thus the nation that had the right of selling, would lose it, because she had not fulfilled the tacit condition.

§97. Of monopolies, and trading companies, with exclusive privileges.Commerce is a common benefit to a nation; and all her members have an equal right to it. Monopoly therefore, in general, is contrary to the rights of the citizens. However, this rule has its exceptions, suggested even by the interest of the nation; and a wise government may, in certain cases, justly establish monopolies. There are commercial enterprises that cannot be carried on without an energy that requires considerable funds, which surpass the ability of individuals. There are others that would soon become ruinous, were they not conducted with great prudence, with one regular spirit, and according to well-supported maxims and rules. These branches of trade cannot be indiscriminately carried on by individuals: companies are therefore formed, under the authority of government; and these companies cannot subsist without an exclusive privilege. It is therefore advantageous to the nation to grant them: hence have arisen, in different countries, those powerful companies that carry on commerce with the East. When the subjects of the United Provinces established themselves in the Indies on the ruin of their enemies the Portuguese, individual merchants would not have dared to think of such an arduous enterprise; and the state itself, wholly taken up with the defence of its liberty against the Spaniards, had not the means of attempting it.

It is also certain beyond all doubt, that, whenever any individual offers, on condition of obtaining an exclusive privilege, to establish a particular branch of commerce or manufacture which the nation has not the means of carrying on, the sovereign may grant him such privilege.

But whenever any branch of commerce may be left open to the whole nation, without producing any inconvenience or being less advantageous to the state, a restriction of that commerce to a few privileged individuals is a violation of the rights of all the other citizens. And even when such a commerce requires considerable expenses to maintain forts, men of war, &c. this being a national affair, the state may defray those expenses, and, as an encouragement to industry, leave the profits of the trade to the merchants. This is sometimes done in England.

§98. Balance of trade, and attention of government in this respect.The conductor of a nation ought to take particular care to encourage the commerce that is advantageous to his people, and to suppress or lay restraints upon that which is to their disadvantage. Gold and silver having become the common standard of the value of all the articles of commerce, the trade that brings into the state a greater quantity of these metals than it carries out, is an advantageous trade; and, on the contrary, that is a ruinous one, which causes more gold and silver to be sent abroad, than it brings home. This is what is called the balance of trade. The ability of those who have the direction of it, consists in making that balance turn in favour of the nation.

§99. Import duties.Of all the measures that a wise government may take with this view, we shall only touch here on import duties. When the conductors of a state, without absolutely forcing trade, are nevertheless desirous of diverting it into other channels, they lay such duties on the merchandises they would discourage, as will prevent their consumption. Thus French wines are charged with very high duties in England, while the duties on 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 conduct that is not very wise and extremely just; and France has no reason to complain of it,—every nation having an undoubted right to make what conditions she thinks proper, with respect to receiving foreign merchandises, and being even at liberty to refuse taking them at all.

CHAPTER IX

Of the Care of the Public Ways of Communication, and the Right of Toll.

§100. Utility of high-ways, canals, &c.The utility of high-ways, bridges, canals, and, in a word, of all safe and commodious ways of communication, cannot be doubted. They facilitate the trade between one place and another, and render the conveyance of merchandise less expensive, as well as more certain and easy. The merchants are enabled to sell at a better price, and to obtain the preference; an attraction is held out to foreigners, whose merchandises are carried through the country, and diffuse wealth in all the places through which they pass. France and Holland feel the happy consequences of this from daily experience.

§101. Duty of government in this respect.One of the principal things that ought to employ the attention of the government with respect to the welfare of the public in general, and of trade in particular, must then relate to the high-ways, canals, &c. in which nothing ought to be neglected to render them safe and commodious. France is one of those states where this duty to the public is discharged with the greatest attention and magnificence. Numerous patroles every where watch over the safety of travellers: magnificent roads, bridges, and canals, facilitate the communication between one province and another:—Lewis XIV. joined the two seas by a work worthy of the Romans.

§102. Its rights in this respect.The whole nation ought, doubtless, to contribute to such useful undertakings. When therefore the laying out and repairing of high-ways, bridges, and canals, would be too great a burthen on the ordinary revenues of the state, the government may oblige the people to labour at them, or to contribute to the expense. The peasants, in some of the provinces of France, have been heard to murmur at the labours imposed upon them for the construction of roads: but experience had no sooner made them sensible of their true interest, than they blessed the authors of the undertaking.

§103. Foundation of the right of toll.The construction and preservation of all these works being attended with great expense, the nation may very justly oblige all those to contribute to them, who receive advantage from their use: this is the legitimate origin of the right of toll. It is just, that a traveller, and especially a merchant, who receives advantage from a bridge, a canal, or a road, in his own passage, and in the more commodious conveyance of his merchandise, should help to defray the expense of these useful establishments, by a moderate contribution: and if the state thinks proper to exempt the citizens from paying it, she is under no obligation to gratify strangers in this particular.

§104. Abuse of this right.But a law so just in its origin frequently degenerates into great abuses. There are countries where no care is taken of the high-ways, and where nevertheless considerable tolls are exacted. A lord of a manor, who happens to possess a stripe of land terminating on a river, there establishes a toll, though he is not at a farthing’s expense in keeping up the navigation of the river, and rendering it convenient. This is a manifest extortion, and an infringment of the natural rights of mankind. For the division of lands, and their becoming private property, could never deprive any man of the right of passage, when not the least injury is done to the person through whose territory he passes. Every man inherits this right from nature, and cannot justly be forced to purchase it.

But the arbitrary or customary law of nations at present tolerates this abuse, while it is not carried to such an excess as to destroy commerce. People do not, however, submit without difficulty, except in the case of those tolls which are established by ancient usage: and the imposition of new ones is often a source of disputes. The Swiss formerly made war on the dukes of Milan, on account of some oppressions of this nature. This right of tolls is also further abused, when the passenger is obliged to contribute too much, and what bears no proportion to the expense of preserving these public passages.

At present, to avoid all difficulty and oppression, nations settle these points by treaties.

CHAPTER X

Of Money and Exchange.

§105. Establishment of money.In the first ages after the introduction of private property, people exchanged their superfluous commodities and effects for those they wanted. Afterwards gold and silver became the common standard of the value of all things: and to prevent the people from being cheated, the mode was introduced of stamping pieces of gold and silver in the name of the state, with the figure of the prince, or some other impression, as the seal and pledge of their value. This institution is of great use and infinite convenience: it is easy to see how much it facilitates commerce.—Nations or sovereigns cannot therefore bestow too much attention on an affair of such importance.

§106. Duty of the nation or prince with respect to the coin.The impression on the coin becoming the seal of its standard and weight, a moment’s reflection will convince us that the coinage of money ought not to be left indiscriminately free to every individual: for by that means, frauds would become too common;—the coin would soon lose the public confidence; and this would destroy a most useful institution. Hence money is coined by the authority and in the name of the state or prince, who are its surety: they ought therefore to have a quantity of it coined sufficient to answer the necessities of the country, and to take care that it be good, that is to say, that its intrinsic value bear a just proportion to its extrinsic or numerary value.

It is true, that, in a pressing necessity, the state would have a right to order the citizens to receive the coin at a price superior to its real value: but as foreigners will not receive it at that price, the 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 contracts with individuals: and in strict justice, this crisis of affairs being over, that money ought to be called in at the expense of the state, and paid for in other specie, according to the natural standard; otherwise this kind of burthen, laid on in the hour of necessity, would fall solely on those who received this arbitrary money in payment: which would be unjust. Besides, experience has shewn that such a resource is destructive to trade, by destroying the confidence both of foreigners and citizens,—raising in proportion the price of every thing,—and inducing every one to lock up or send abroad the good old specie; whereby a temporary stop is put to the circulation of money. So that it is the duty of every nation and of every sovereign to abstain, as much as possible, from so dangerous an experiment, and rather to have recourse to extraordinary taxes and contributions to support the pressing exigencies of the state.

§107. Their rights in this respect.Since the state is surety for the goodness of the money and its currency, the public authority alone has the right of coining it. Those who counterfeit it, violate the rights of the sovereign, whether they make it of the same standard and value or not. These are called false-coiners, and their crime is justly considered as one of the most heinous nature. For if they coin base money, they rob both the public and the prince; and if they coin good, they usurp the prerogative of the sovereign. They will never be inclined to coin good money, unless there be a profit on the coinage: and in this case they rob the state of a profit which exclusively belongs to it. In both cases, they do an injury to the sovereign; for the public faith being surety for the money, the sovereign alone has a right to have it coined. For this reason the right of coining is placed among the prerogatives of majesty, and Bodinus relates, that Sigismund Augustus, king of Poland, having granted this privilege to the duke of Prussia, in the year 1543, the states of the country passed a decree in which it was asserted that the king could not grant that privilege, it being inseparable from the crown. The same author observes, that, although many lords and bishops of France had formerly the privilege of coining money, it was still considered as coined by the king’s authority: and the kings of France at last withdrew all those privileges, on account of their being often abused.

§108. How one nation may injure another in the article of coin.From the principles just laid down, it is easy to conclude, that if one nation counterfeits the money of another, or if she allows and protects false-coiners who presume to do it, she does that nation an injury. But commonly criminals of this class find no protection any-where,—all princes being equally interested in exterminating them.

§109. Of exchange, and the laws of commerce.There is another custom more modern, and of no less use to commerce than the establishment of coin,—namely exchange, or the traffic of bankers, by means of which a merchant remits immense sums from one end of the world to the other, at a very trifling expense, and, if he pleases, without risk. For the same reason that sovereigns are obliged to protect commerce, they are obliged to support this custom, by good laws, in which every merchant, whether citizen or foreigner, may find security. In general, it is equally the interest and the duty of every nation to have wise and equitable commercial laws established in the country.

CHAPTER XI

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

§110. A nation ought to labour after its own happiness.Let us continue to lay open the principal objects of a good government. What we have said in the five preceding chapters relates to the care of providing for the necessities of the people, and procuring plenty in the state: this is a point of necessity; but it is not sufficient for the happiness of a nation. Experience shews that a people may be unhappy in the midst of all earthly enjoyments, and in the possession of the greatest riches. Whatever may enable mankind to enjoy a true and solid felicity, is a second object that deserves the most serious attention of the government. Happiness is the point where centre all those duties which individuals and nations owe to themselves; and this is the great end of the law of nature. The desire of happiness is the powerful spring that puts man in motion: felicity is the end they all have in view, and it ought to be the grand object of the public will (Prelim. §5). It is then the duty of those who form this public will, or of those who represent it—the rulers of the nation—to labour for the happiness of the people, to watch continually over it, and to promote it to the utmost of their power.

§111. Instruction.To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found,—that is, in their own perfection,—and to teach them the means of obtaining it. The sovereign cannot then take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline. Let us leave a hatred of the sciences to the despotic tyrants of the east: they are afraid of having their people instructed, because they chuse to rule over slaves. But though they are obeyed with the most abject submission, they frequently experience the effects of disobedience and revolt. A just and wise prince feels no apprehensions from the light of knowledge: he knows that it is ever advantageous to a good government. If men of learning know that liberty is the natural inheritance of mankind, on the other hand they are more fully sensible than their neighbours, how necessary it is, for their own advantage, that this liberty should be subject to a lawful authority:—incapable of being slaves, they are faithful subjects.

§112. Education of youth.The first impressions made on the mind are of the utmost importance for the remainder of life. In the tender years of infancy and youth, the human mind and heart easily receive the seeds of good or evil. Hence the education of youth is one of the most important affairs that deserve the attention of the government. It ought not to be entirely left to fathers. The most certain way of forming good citizens is to found good establishments for public education, to provide them with able masters,—direct them with prudence,—and pursue such mild and suitable measures, that the citizens will not neglect to take advantage of them. How admirable was the education of the Romans, in the flourishing ages of their republic, and how admirably was it calculated to form great men! The young men put themselves under the patronage of some illustrious person; they frequented his house, accompanied him wherever he went, and equally improved by his instructions and example: their very sports and amusements were exercises proper to form soldiers. The same practice prevailed at Sparta; and this was one of the wisest institutions of the incomparable Lycurgus. That legislator and philosopher entered into the most minute details respecting the education of youth, being persuaded that on that depended the prosperity and glory of his republic.

§113. Arts and sciences.Who can doubt that the sovereign,—the whole nation,—ought to encourage the arts and sciences? To say nothing of the many useful inventions that strike the eye of every beholder,—literature and the polite arts enlighten the mind, and soften the manners: and if study does not always inspire the love of virtue, it is because it sometimes, and even too often, unhappily meets with an incorrigibly vicious heart. The nation and its conductors ought then to protect men of learning and great artists, and to call forth talents by honours and rewards. Let the friends of barbarism declaim against the sciences and polite arts;—let us, without deigning to answer their vain reasonings, content ourselves with appealing to experience. Let us compare England, France, Holland, and several towns of Switzerland and Germany, to the many regions that lie buried in ignorance, and see where we can find the greater number of honest men and good citizens. It would be a gross error to oppose against us the example of Sparta, and that of ancient Rome. They, it is true, neglected curious speculations, and those branches of knowledge and art that were purely subservient to pleasure and amusement: but the solid and practical sciences,—morality, jurisprudence, politics, and war, were cultivated by them, especially by the Romans, with a degree of attention superior to what we bestow on them.

In the present age, the utility of literature and the polite arts is pretty generally acknowledged, as is likewise the necessity of encouraging them. The immortal Peter I. thought that without their assistance he could not entirely civilise Russia, and render it flourishing. In England, learning and abilities lead to honour and riches. Newton was honoured, protected, and rewarded while living, and after his death his tomb was placed among those of kings. France also, in this respect, deserves particular praise: to the munificence of her kings she is indebted for several establishments that are no less useful than glorious. The Royal Academy of Sciences diffuses on every side the light of knowledge, and the desire of instruction. Louis XV. furnished the means of sending to search, under the equator and the polar circle, for the proof of an important truth; and we at present know what was before only believed on the strength of Newton’s calculations. Happy will that kingdom be, if the too general taste of the age does not make the people neglect solid knowledge, to give themselves up to that which is merely amusing, and if those who fear the light do not succeed in extinguishing the blaze of science!

§114. Freedom of philosophical discussion.I speak of the freedom of philosophical discussion, which is the soul of the republic of letters. What can genius produce when trammelled by fear? Can the greatest man that ever lived contribute much towards enlightening the minds of his fellow-citizens, if he finds himself constantly exposed to the cavils of captious and ignorant bigots,—if he is obliged to be continually on his guard, to avoid being accused by innuendo-mongers of indirectly attacking the received opinions? I know that liberty has its proper bounds,—that a wise government ought to have an eye to the press, and not to allow the publication of scandalous productions, which attack morality, government, or the established religion. But yet great care should be taken not to extinguish a light that may afford the state the most valuable advantages. Few men know how to keep a just medium; and the office of literary censor ought to be intrusted to none but those who are at once both prudent and enlightened. Why should they search in a book for what the author does not appear to have intended to put into it? and when a writer’s thoughts and discourses are wholly employed on philosophy, ought a malicious adversary to be listened to, who would set him at variance with religion? So far from disturbing a philosopher on account of his opinions, the magistrate ought to chastise those who publicly charge him with impiety, when in his writings he shews respect to the religion of the state. The Romans seem to have been formed to give examples to the universe: that wise people carefully supported the worship and religious ceremonies established by law, and left the field open to the speculations of philosophers. Cicero—a senator, a consul, an augur—ridicules superstition, attacks it, and demolishes it in his philosophical writings; and, in so doing, he thought he was only promoting his own happiness and that of his fellow-citizens: but he observes that “to destroy superstition is not destroying religion; for (says he) it becomes a wise man to respect the institutions and religious ceremonies of his ancestors: and it is sufficient to contemplate the beauty of the world, and the admirable order of the celestial bodies, in order to be convinced of the existence of an eternal and all-perfect being, who is entitled to the veneration of the human race.” And in his Dialogues on the Nature of the Gods, he introduces Cotta the academic, who was high-priest, attacking with great freedom the opinions of the stoics, and declaring that he should always be ready to defend the established religion from which he saw the republic had derived great advantages; that neither the learned nor the ignorant should make him abandon it: he then says to his adversary, “These are my thoughts, both as pontiff and as Cotta. But do you, as a philosopher, bring me over to your opinion by the strength of your arguments: for a philosopher ought to prove to me the truth of the religion he would have me embrace, whereas I ought in this respect to believe our forefathers, even without proof.”

Let us add experience to these examples and authorities. Never did a philosopher occasion disturbances in the state, or in religion, by his opinions: they would make no noise among the people, nor ever offend the weak, if malice or intemperate zeal did not take pains to discover a pretended venom lurking in them. It is by him who endeavours to place the opinions of a great man in opposition to the doctrines and worship established by law, that the state is disturbed, and religion brought into danger.

§115. Love of virtue, and abhorrence of vice to be excited.To instruct the nation, is not sufficient:—in order to conduct it to happiness, it is still more necessary to inspire the people with the love of virtue, and the abhorrence of vice. Those who are deeply versed in the study of morality are convinced that virtue is the true and only path that leads to happiness; so that its maxims are but the art of living happily; and he must be very ignorant of politics, who does not perceive how much more capable a virtuous nation will be, than any other, of forming a state that shall be at once happy, tranquil, flourishing, solid, respected by its neighbours, and formidable to its enemies. The interest of the prince must then concur with his duty and the dictates of his conscience, in engaging him to watch attentively over an affair of such importance. Let him employ all his authority in order to encourage virtue, and suppress vice: let the public establishments be all directed to this end: let his own conduct, his example, and the distribution of favours, posts, and dignities, all have the same tendency. Let him extend his attention even to the private life of the citizens, and banish from the state whatever is only calculated to corrupt the manners of the people. It belongs to politics to teach him in detail the different means of attaining this desirable end,—to shew him those he should prefer, and those he ought to avoid, on account of the dangers that might attend the execution, and the abuses that might be made of them. We shall here only observe, in general, that vice may be suppressed by chastisements, but that mild and gentle methods alone can elevate men to the dignity of virtue: it may be inspired, but it cannot be commanded.

§116. The nation may hence discover the intention of its rulers.It is an incontestable truth, that the virtues of the citizens constitute the most happy dispositions that can be desired by a just and wise government. Here then is an infallible criterion, by which the nation may judge of the intentions of those who govern it. If they endeavour to render the great and the common people virtuous, their views are pure and upright; and you may rest assured that they solely aim at the great end of government, the happiness and glory of the nation. But if they corrupt the morals of the people, spread a taste for luxury, effeminacy, a rage for licentious pleasures,—if they stimulate the higher orders to a ruinous pomp and extravagance,—beware, citizens! beware of those corruptors! they only aim at purchasing slaves in order to exercise over them an arbitrary sway.

If a prince has the smallest share of moderation, he will never have recourse to these odious methods. Satisfied with his superior station and the power given him by the laws, he proposes to reign with glory and safety; he loves his people, and desires to render them happy. But his ministers are in general impatient of resistance, and cannot brook the slightest oppo-sition:—if he surrenders to them his authority, they are more haughty and intractable than their master: they feel not for his people the same love that he feels: “let the nation be corrupted (say they) provided it do but obey.” They dread the courage and firmness inspired by virtue, and know that the distributor of favours rules as he pleases over men whose hearts are accessible to avarice. Thus a wretch who exercises the most infamous of all professions, perverts the inclinations of a young victim of her odious traffic; she prompts her to luxury and epicurism, she inspires her with voluptuousness and vanity, in order the more certainly to betray her to a rich seducer. This base and unworthy creature is sometimes chastised by the magistrate; but the minister, who is infinitely more guilty, wallows in wealth, and is invested with honour and authority. Posterity, however, will do him justice, and detest the corruptor of a respectable nation.

§117. The state, or the public person, ought to perfect its understanding and will.If governors endeavoured to fulfill the obligations which the law of nature lays upon them with respect to themselves, and in their character of conductors of the state, they would be incapable of ever giving into the odious abuse just mentioned. Hitherto we have considered the obligation a nation is under to acquire knowledge and virtue, or to perfect its understanding and will;—that obligation, I say, we have considered in relation to the individuals that compose a nation: it also belongs in a proper and singular manner to the conductors of the state. A nation, while she acts in common, or in a body, is a moral person (Prelim. §2) that has an understanding and will of her own, and is not less obliged than any individual to obey the laws of nature (Book I. §5), and to improve her faculties (Book I. §21). That moral person resides in those who are invested with the public authority, and represent the entire nation. Whether this be the common council of the nation, an aristocratic body, or a monarch, this conductor and representative of the nation, this sovereign, of whatever kind, is therefore indispensably obliged to procure all the knowledge and information necessary to govern well, and to acquire the practice and habit of all the virtues suitable to a sovereign.

And as this obligation is imposed with a view to the public welfare, he ought to direct all his knowledge, and all his virtues, to the safety of the state, the end of civil society.

§118. And to direct the knowledge and virtues of the citizens to the welfare of the society.He ought even to direct, as much as possible, all the abilities, the knowledge, and the virtues of the citizens to this great end; so that they may not only be useful to the individuals who possess them, but also to the state. This is one of the great secrets in the art of reigning. The state will be powerful and happy, if the good qualities of the subject, passing beyond the narrow sphere of private virtues, become civic virtues. This happy disposition raised the Roman republic to the highest pitch of power and glory.

§119. Love for their country.The grand secret of giving to the virtues of individuals a turn so advantageous to the state, is to inspire the citizens with an ardent love for their country. It will then naturally follow, that each will endeavour to serve the state, and to apply all his powers and abilities to the advantage and glory of the nation. This love of their country is natural to all men. The good and wise author of nature has taken care to bind them, by a kind of instinct, to the places where they received their first breath, and they love their own nation, as a thing with which they are intimately connected. But it often happens that some causes unhappily weaken or destroy this natural impression. The injustice or the severity of the government too easily effaces it from the hearts of the subjects: can self-love attach an individual to the affairs of a country where every thing is done with a view to a single person?—far from it:—we see, on the contrary, that free nations are passionately interested in the glory and the happiness of their country. Let us call to mind the citizens of Rome in the happy days of the republic, and consider, in modern times, the English and the Swiss.

§120. In individuals.The love and affection a man feels for the state of which he is a member, is a necessary consequence of the wise and rational love he owes to himself, since his own happiness is connected with that of his country. This sensation ought also to flow from the engagements he has entered into with society. He has promised to procure its safety and advantage as far as in his power: and how can he serve it with zeal, fidelity, or courage, if he has not a real love for it?

§121. In the nation or state itself, and in the sovereign.The nation in a body ought doubtless to love itself, and desire its own happiness as a nation. The sensation is too natural to admit of any failure in this obligation: but this duty relates more particularly to the conductor, the sovereign, who represents the nation, and acts in its name. He ought to love it as what is most dear to him, to prefer it to every thing, for it is the only lawful object of his care, and of his actions, in every thing he does by virtue of the public authority. The monster who does not love his people is no better than an odious usurper, and deserves, no doubt, to be hurled from the throne. There is no kingdom where the statue of Codrus ought not to be placed before the palace of the sovereign. That magnanimous king of Athens sacrificed his life for his people. That great prince, and Louis XII. are illustrious models of the tender love a sovereign owes to his subjects.

§122. Definition of the term country.The term, country, seems to be pretty generally known: but as it is taken in different senses, it may not be unuseful to give it here an exact definition. It commonly signifies the state of which one is a member: in this sense we have used it in the preceding sections; and it to be thus understood in the law of nations.

In a more confined sense, and more agreeably to its etymology, this term signifies the state, or even more particularly the town or place, where our parents had their fixed residence at the moment of our birth. In this sense, it is justly said, that our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to chuse another country,—that is, to become a member of another society; so, when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in preference to every other state, that he is bound to serve with his utmost efforts.

§123. How shameful and criminal to injure our country.If every man is obliged to entertain a sincere love for his country, and to promote its welfare as far as in his power, it is a shameful and detestable crime to injure that very country. He who becomes guilty of it, violates his most sacred engagements, and sinks into base ingratitude: he dishonours himself by the blackest perfidy, since he abuses the confidence of his fellow-citizens, and treats as enemies those who had a right to expect his assistance and services. We see traitors to their country only among those men who are solely sensible to base interest, who only seek their own immediate advantage, and whose hearts are incapable of every sentiment of affection for others. They are therefore justly detested by mankind in general, as the most infamous of all villains.

§124. The glory of good citizens.On the contrary, those generous citizens are loaded with honour and praise, who, not content with barely avoiding a failure in duty to their country, make noble efforts in her favour, and are capable of making her the greatest sacrifices. Examples.The names of Brutus, Curtius, and the two Decii, will live as long as that of Rome. The Swiss will never forget Arnold de Winkelried, that hero, whose exploit would have deserved to be transmitted to posterity by the pen of a Livy. He truly devoted his life for his country’s sake: but he devoted it as a general, as an undaunted warrior, not as a superstitious visionary. That nobleman, who was of the country of Underwald, seeing at the battle of Sempach that his countrymen could not break through the Austrians, because the latter, armed cap-a-pie, had dismounted, and, forming a close battalion, presented a front covered with steel, and bristling with pikes and lances,—formed the generous design of sacrificing himself for his country. “My friends,” said he to the Swiss, who began to be dispirited, “I will this day give my life to procure you the victory: I only recommend to you my family: follow me, and act in consequence of what you see me do.” At these words he ranged them in that form which the Romans called cuneus, and placing himself in the point of the triangle, marched to the centre of the enemy; when, embracing between his arms as many of the enemy’s pikes as he could compass, he threw himself to the ground, thus opening for his followers a passage to penetrate into the midst of this thick battalion. The Austrians, once broken, were conquered, as the weight of their armour then became fatal to them, and the Swiss obtained a complete victory.

CHAPTER XII

Of Piety and Religion.

§125. Of piety.Piety and religion have an essential influence on the happiness of a nation, and, from their importance, deserve a particular chapter. Nothing is so proper as piety to strengthen virtue, and give it its due extent. By the word piety, I mean a disposition of soul that leads us to direct all our actions towards the Deity, and to endeavour to please him in every thing we do. To the practice of this virtue all mankind are indispensably obliged: it is the purest source of their felicity; and those who unite in civil society, are under still greater obligations to practise it. A nation ought then to be pious. The superiors intrusted with the public affairs should constantly endeavour to deserve the approbation of their divine master; and whatever they do in the name of the state, ought to be regulated by this grand view. The care of forming pious dispositions in all the people should be constantly one of the principal objects of their vigilance, and from this the state will derive very great advantages. A serious attention to merit in all our actions the approbation of an infinitely wise Being, cannot fail of producing excellent citizens. Enlightened piety in the people is the firmest support of a lawful authority; and, in the sovereign’s heart, it is the pledge of the people’s safety, and excites their confidence. Ye lords of the earth, who acknowledge no superior here below, what security can we have for the purity of your intentions, if we do not conceive you to be deeply impressed with respect for the common Father and Lord of men, and animated with a desire to please him?

§126. It ought to be attended with knowledge.We have already insinuated that piety ought to be attended with knowledge. In vain would we propose to please God, if we know not the means of doing it. But what a deluge of evils arises when men heated by so powerful a motive are prompted to take methods that are equally false and pernicious! A blind piety only produces superstitious bigots, fanatics and persecutors, a thousand times more dangerous and destructive to society than libertines are. There have appeared barbarous tyrants who have talked of nothing but the glory of God, while they crushed the people, and trampled under foot the most sacred laws of nature. It was from a refinement of piety, that the anabaptists of the sixteenth century refused all obedience to the powers of the earth. James Clement and Ravaillac, those execrable parricides, thought themselves animated by the most sublime devotion.

§127. Of religion internal and external.Religion consists in the doctrines concerning the Deity and the things of another life, and in the worship appointed to the honour of the supreme Being. So far as it is seated in the heart, it is an affair of conscience, in which every one ought to be directed by his own understanding: but so far as it is external, and publicly established, it is an affair of state.

§128. Rights of individuals.Every man is obliged to endeavour to obtain just ideas of God, to know his laws, his views with respect to his creatures, and the end for which they were created. Man, doubtless, owes the most pure love, the most profound respect to his Creator; and to keep alive these dispositions, and act in consequence of them, he should honour God in all his actions, and shew, by the most suitable means, the sentiments that fill his mind. Liberty of conscience.This short explanation is sufficient to prove that man is essentially and necessarily free to make use of his own choice in matters of religion. His belief is not to be commanded; and what kind of worship must that be, which is produced by force! Worship consists in certain actions performed with an immediate view to the honour of God; there can then be no worship proper for any man, which he does not believe suitable to that end. The obligation of sincerely endeavouring to know God, of serving him, and adoring him from the bottom of the heart, being imposed on man by his very nature,—it is impossible that, by his engagements with society, he should have exonerated himself from that duty, or deprived himself of the liberty which is absolutely necessary for the performance of it. It must then be concluded, that liberty of conscience is a natural and inviolable right. It is a disgrace to human nature, that a truth of this kind should stand in need of proof.

§129. Public establishment of religion.But we should take care not to extend this liberty beyond its just bounds. In religious affairs a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing what he pleases, without regard to the consequences it may produce on society. The establishment of re-ligion by law, and its public exercise, are Duties and rights of the nation.matters of state, and are necessarily under the jurisdiction of the political authority. If all men are bound to serve God, the entire nation, in her national capacity, is doubtless obliged to serve and honour him (Prelim. §5). And as this important duty is to be discharged by the nation in whatever manner she judges best,—to the nation it belongs to determine what religion she will follow, and what public worship she thinks proper to establish.

§130. When there is as yet no established religion.If there be as yet no religion established by public authority, the nation ought to use the utmost care, in order to know and establish the best. That which shall have the approbation of the majority shall be received, and publicly established by law; by which means it will become the religion of the state. But if a considerable part of the nation is obstinately bent upon following another, it is asked—What does the law of nations require in such a case? Let us first remember that liberty of conscience is a natural right, and that there must be no constraint in this respect. There remain then but two methods to take,—either to permit this party of the citizens to exercise the religion they chuse to profess,— or to separate them from the society,—leaving them their property, and their share of the country that belonged to the nation in common,— and thus to form two new states instead of one. The latter method appears by no means proper:—it would weaken the nation, and thus would be inconsistent with that regard which she owes to her own preservation. It is therefore of more advantage to adopt the former method, and thus to establish two religions in the state. But if these religions are too incompatible,—if there be reason to fear that they will produce divisions among the citizens, and disorder in public affairs,—there is a third method, a wise medium between the two former, of which the Swiss have furnished examples. The cantons of Glaris and Appenzel were, in the sixteenth century, each divided into two parts: the one preserved the Romish religion, and the other embraced the reformation: each part has a distinct government of its own for domestic affairs; but on foreign affairs they unite, and form but one and the same republic, one and the same canton.

Finally, if the number of citizens who would profess a different religion from that established by the nation be inconsiderable,—and if for good and just reasons it be thought improper to allow the exercise of several religions in the state,—those citizens have a right to sell their lands, to retire with their families, and take all their property with them. For their engagements to society, and their submission to the public authority, can never oblige them to violate their consciences. If the society will not allow me to do that to which I think myself bound by an indispensable obligation, it is obliged to allow me permission to depart.

§131. When there is an established religion.When the choice of a religion is already made, and there is one established by law, the nation ought to protect and support that religion, and preserve it as an establishment of the greatest importance,— without, however, blindly rejecting the changes that may be proposed to render it more pure and useful: for we ought, in all things, to aim at perfection (§21). But as all innovations, in this case, are full 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 receives from them.

But if a new religion spreads, and becomes fixed in the minds of the people, as it commonly happens, independently of the public authority, and without any deliberation in common,—it will be then necessary to adopt the mode of reasoning we followed in the preceding section on the case of chusing a religion,—to pay attention to the number of those who follow the new opinions,—to remember that no earthly power has authority over the consciences of men,—and to unite the maxims of sound policy with those of justice and equity.

§132. Duties and rights of the sovereign with regard to religion.We have thus given a brief compendium of the duties and rights of a nation with regard to religion. Let us now come to those of the sovereign. These cannot be exactly the same as those of the nation which the sovereign represents. The nature of the subject opposes it; for in religion nobody can give up his liberty. To give a clear and distinct view of those rights and duties of the prince, and to establish them on a solid basis, it is necessary here to refer to the distinction we have made in the two preceding sections:—if there is question of establishing a religion in a state that has not yet received one, the sovereign may doubtless favour that which to him appears the true or the best religion,—may have it announced to the people, and, by mild and suitable means, endeavour to establish it:—he is even bound to do this, because he is obliged to attend to every thing that concerns the happiness of the nation. But in this he has no right to use authority and constraint. Since there was no religion established in the society when he received his authority, the people gave him no power in this respect; the support of the laws relating to religion is no part of his office, and does not belong to the authority with which they intrusted him. Numa was the founder of the religion of the ancient Romans: but he persuaded the people to receive it. If he had been able to command in that instance, he would not have had recourse to the revelations of the nymph Egeria. Though the sovereign cannot exert any authority in order to establish a religion where there is none, he is authorised and even obliged to employ all his power to hinder the introduction of one which he judges pernicious to morality and dangerous to the state. For he ought to preserve his people from every thing that may be injurious to them; and so far is a new doctrine from being an exception to this rule, that it is one of its most important objects. We shall see, in the following sections, what are the duties and rights of the prince in regard to the religion publicly established.

§133. Where there is an established religion.The prince, or the conductor, to whom the nation has intrusted the care of the government, and the exercise of the sovereign power, is obliged to watch over the preservation of the received religion, the worship established by law,—and has a right to restrain those who attempt to destroy or disturb it. But to acquit himself of this duty in a manner equally just and wise, he ought never to lose sight of the character in which he is called to act, and the reason of his being invested with it. Religion is of extreme importance to the peace and welfare of society; and the prince is obliged to have an eye to every thing in which the state is interested. This is all that calls him to interfere in religion, or to protect and defend it. It is therefore upon this footing only that he can interfere: consequently he ought to exert his authority against those alone whose conduct in religious matters is prejudicial or dangerous to the state; but he must not extend it to pretended crimes against God, the punishment of which exclusively belongs to the Sovereign Judge, the Searcher of hearts. Let us remember that religion is no farther an affair of state, than as it is exterior and publicly established: that of the heart can only depend on the conscience. The prince has no right to punish any persons but those that disturb society; and it would be very unjust in him to inflict pains and penalties on any person whatsoever for his private opinions, when that person neither takes pains to divulge them, nor to obtain followers. It is a principle of fanaticism, a source of evils, and of the most notorious injustice, to imagine that frail mortals ought to take up the cause of God, maintain his glory by acts of violence, and avenge him on his enemies. Let us only give to sovereigns, said a great statesman and an excellent citizen —let us give them, for the common advantage, the power of punishing whatever is injurious to charity in society. It appertains not to human justice to become the avenger of what concerns the cause of God. Cicero, who was as able and as great in state affairs as in philosophy and eloquence, thought like the duke of Sully. In the laws he proposes relating to religion, he says, on the subject of piety and interior religion, “if any one transgresses, God will revenge it”: but he declares the crime capital that should be committed against the religious ceremonies established for public affairs, and in which the whole state is concerned. The wise Romans were very far from persecuting a man for his creed; they only required that people should not disturb the public order.

§134. Objects of his care, and the means he ought to employ.The creeds or opinions of individuals, their sentiments with respect to the Deity,—in a word, interior religion—should, like piety, be the object of the prince’s attention: he should neglect no means of enabling his subjects to discover the truth, and of inspiring them with good sentiments; but he should employ for this purpose only mild and paternal methods. Here he cannot command (§128). It is in external religion and its public exercise that his authority may be employed. His task is to preserve it, and to prevent the disorders and troubles it may occasion. To preserve religion, he ought to maintain it in the purity of its institution, to take care that it be faithfully observed in all its public acts and ceremonies, and punish those who dare to attack it openly. But he can require nothing by force except silence, and ought never to oblige any person to bear a part in external ceremonies:—by constraint, he would only produce disturbances or hypocrisy.

A diversity of opinions and worship has often produced disorders and fatal dissensions in a state: and for this reason, many will allow but one and the same religion. A prudent and equitable sovereign will, in particular conjunctures, see whether it be proper to tolerate or forbid the exercise of several different kinds of worship.

§135. Of toleration.But, in general, we may boldly affirm that the most certain and equitable means of preventing the disorders that may be occasioned by difference of religion, is an universal toleration of all religions which contain no tenets that are dangerous either to morality or to the state. Let interested priests declaim!—they would not trample under foot the laws of humanity, and those of God himself, to make their doctrine triumph, if it were not the foundation on which are erected their opulence, luxury, and power. Do but crush the spirit of persecution,—punish severely whoever shall dare to disturb others on account of their creed,—and you will see all sects living in peace in their common country, and ambitious of producing good citizens. Holland and the states of the king of Prussia furnish a proof of this: Calvinists, Lutherans, Catholics, Pietists, Socinians, Jews, all live there in peace, because they are equally protected by the sovereign; and none are punished, but the disturbers of the tranquillity of others.

§136. What the prince ought to do when the nation is resolved to change its religion.If, in spite of the prince’s care to preserve the established religion, the entire nation, or the greater part of it, should be disgusted with it, and desire to have it changed, the sovereign cannot do violence to his people, nor constrain them in an affair of this nature. The public religion was established for the safety and advantage of the nation: and, besides its proving inefficacious when it ceases to influence the heart, the sovereign has here no other authority than that which results from the trust reposed in him by the people,—and they have only committed to him that of protecting whatever religion they think proper to profess.

§137. Difference of religion does not deprive a prince of his crown.But at the same time it is very just that the prince should have the liberty of continuing in the profession of his own religion, without losing his crown. Provided that he protect the religion of the state, this is all that can be required of him. In general, a difference of religion can never make any prince forfeit his claims to the sovereignty, unless a fundamental law ordain it otherwise. The pagan Romans did not cease to obey Constantine, when he embraced Christianity; nor did the Christians revolt from Julian, after he had quitted it.

§138. Duties and rights of the sovereign reconciled with those of the subjects.We have established liberty of conscience for individuals (§128). However, we have also shewn that the sovereign has a right, and is even under an obligation, to protect and support the religion of the state, and not suffer any person to attempt to corrupt or destroy it,—that he may even, according to circumstances, permit only one kind of public worship throughout the whole country. Let us reconcile those different duties and rights, between which it 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 no body to do any thing contrary to his conscience; let no subject be forced to bear a part in a worship which he disapproves, or to profess a religion which he believes to be false; but let the subject on his part rest content with avoiding the guilt of a shameful hypocrisy; let him, according to the light of his own knowledge, serve God in private, and in his own house,—persuaded that providence does not call upon him for public worship, since it has placed him in such circumstances, that he cannot perform it without creating disturbances in the state. God would have us obey our sovereign, and avoid every thing that may be pernicious to society. These are immutable precepts of the law of nature: the precept that enjoins public worship is conditional, and dependent on the effects which that worship may produce. Interior worship is necessary in its own nature; and we ought to confine ourselves to it, in all cases in which it is most convenient. Public worship is appointed for the edification of men in glorifying God: but it counteracts that end, and ceases to be laudable, on those occasions when it only produces disturbances, and gives offence. If any one believes it absolutely necessary, let him quit the country where he is not allowed to perform it according to the dictates of his own conscience,—let him go and join those who profess the same religion with himself.

§139. The sovereign ought to have the inspection of the affairs of religion, and authority over those who teach it.The prodigious influence of religion on the peace and welfare of society incontrovertibly proves that the conductor of the state ought to have the inspection of what relates to it, and an authority over the ministers who teach it. The end of society and of civil government necessarily requires that he who exercises the supreme power should be invested with all the rights without which he could not exercise it in a manner the most advantageous to the state. These are the prerogatives of majesty (§45), of which no sovereign can divest himself, without the express consent of the nation. The inspection of the affairs of religion, and the authority over its ministers, constitute therefore one of the most important of those prerogatives, since, without this power, the sovereign would never be able to prevent the disturbances that religion might occasion in the state, nor to employ that powerful engine in promoting the welfare and safety of the society. It would be certainly very strange that a multitude of men who united themselves in society for their common advantage, that each might in tranquillity labour to supply his necessities, promote his own perfection and happiness, and live as becomes a rational being,—it would be very strange, I say, that such a society should not have a right to follow their own judgment in an affair of the utmost importance,—to determine what they think most suitable with regard to religion,—and to take care that nothing dangerous or hurtful be mixed with it. Who shall dare to dispute that an independent nation has, in this respect as in all others, a right to proceed according to the light of conscience? and when once she has made choice of a particular religion and worship, may she not confer on her conductor all the power she possesses of regulating and directing that religion and worship, and enforcing their observance?

Let us not be told that the management of sacred things belongs not to a profane hand. Such discourses, when brought to the bar of reason, are found to be only vain declamations. There is nothing on earth more august and sacred than a sovereign; and why should God, who calls him by his providence to watch over the safety and happiness of a whole nation, deprive him of the direction of the most powerful spring that actuates mankind? The law of nature secures to him this right, with all others that are essential to good government; and nothing is to be found in Scripture that changes this disposition. Among the Jews, neither the king nor any other person could make any innovation in the law of Moses; but the sovereign attended to its preservation, and could check the high-priest when he deviated from his duty. Where is it asserted in the New Testament, that a Christian prince has nothing to do with religious affairs? Submission and obedience to the superior powers are there clearly and expressly enjoined. It were in vain to object to us the example of the apostles, who preached the gospel in opposition to the will of sovereigns:—whoever would deviate from the ordinary rules, must have a divine mission, and establish his authority by miracles.

No person can dispute that the sovereign has a right to take care that nothing contrary to the welfare and safety of the state be introduced into religion; and consequently he must have a right to examine its doctrines, and to point out what is to be taught, and what is to be suppressed in silence.

§140. He ought to prevent the abuse of the received religion.The sovereign ought likewise to watch attentively, in order to prevent the established religion from being employed to sinister purposes, either by making use of its discipline to gratify hatred, avarice, or other passions, or presenting its doctrines in a light that may prove prejudicial to the state. Of wild reveries, seraphic devotions, and sublime speculations, what would be the consequences to society, if it entirely consisted of individuals whose intellects were weak, and whose hearts were easily governed?—the consequences would be a renunciation of the world, a general neglect of business and of honest labour. This society of pretended saints would become an easy and certain prey to the first ambitious neighbour; or if suffered to live in peace, it would not survive the first generation; both sexes, consecrating their chastity to God, would refuse to co-operate in the designs of their creator, and to comply with the requisitions of nature and of the state. Unluckily for the missionaries, it evidently appears, even from Father Charlevoix’ History of New France, that their labours were the principal cause of the ruin of the Hurons. That author expressly says, that a great number of those converts would think of nothing but the faith,—that they forgot their activity and valour,—that divisions arose between them and the rest of the nation, &c. That nation was therefore soon destroyed by the Iroquois, whom they had before been accustomed to conquer.

§141. The sovereign’s authority over the ministers of religion.To the prince’s inspection of the affairs and concerns of religion we have joined an authority over its ministers: without the latter power, the former would be nugatory and ineffectual:—they are both derived from the same principle. It is absurd, and contrary to the first foundations of society, that any citizens should claim an independence of the sovereign authority, in offices of such importance to the repose, the happiness, and safety of the state. This is establishing two independent powers in the same society,—an unfailing source of division, disturbance, and ruin. There is but one supreme power in the state; the functions of the subordinate powers vary according to their different objects:—ecclesiastics, magistrates, and commanders of the troops, are all officers of the republic, each in his own department; and all are equally accountable to the sovereign.

§142. Nature of this authority.A prince cannot indeed justly oblige an ecclesiastic to preach a doctrine, or to perform a religious rite, which the latter does not think agreeable to the will of God. But if the minister cannot, in this respect, conform to the will of his sovereign, he ought to resign his station, and consider himself as a man who is not called to fill it,—two things being necessary for the discharge of the duty annexed to it, viz. to teach and behave with sincerity, according to the dictates of his own conscience, and to conform to the prince’s intentions, and the laws of the state. Who can forbear being filled with indignation, at seeing a bishop audaciously resist the orders of the sovereign, and the decrees of the supreme tribunals, solemnly declaring that he thinks himself accountable to God alone, for the power with which he is intrusted?

§143. Rule to be observed with respect to ecclesiastics.On the other hand, if the clergy are rendered contemptible, it will be out of their power to produce the fruits for which their ministry was appointed. The rule that should be followed with respect to them may be comprised in a few words:—let them enjoy a large portion of esteem; but let them have no authority, and still less any claim to independence. In the first place, let the clergy, as well as every other order of men, be, in their functions, as in every thing else, subject to the public power, and accountable to the sovereign for their conduct. Secondly, let the prince take care to render the ministers of religion respectable in the eyes of the people; let him trust them with the degree of authority necessary to enable them to discharge their duty with success; let him, in case of need, support them with the power he possesses. Every man in office ought to be vested with an authority commensurate to his functions; otherwise he will be unable to discharge them in a proper manner. I see no reason why the clergy should be excepted from this general rule; only the prince should be more particularly watchful that they do not abuse their authority; the affair being altogether the most delicate, and the most fruitful in dangers. If he renders the character of churchmen respectable, he should take care that this respect be not carried to such a superstitious veneration, as shall arm the hand of an ambitious priest with a powerful engine with which he may force weak minds into whatever direction he pleases. When once the clergy become a separate body, they become formidable. The Romans (we shall often have occasion to recur to them)— the wise Romans elected from among the senators their pontifex-maximus, and the principal ministers of the altar; they knew no distinction between clergy and laity; nor had they a set of gownsmen to constitute a separate class from the rest of the citizens.

§144. Recapitulation of the reasons which establish the sovereign’s rights in matters of religion.If the sovereign be deprived of this power in matters of religion, and this authority over the clergy, how shall he preserve the religion pure from the admixture of any thing contrary to the welfare of the state? How can he cause it to be constantly taught and practised in the manner most conducive to the pub-lic welfare? And especially, how can he prevent the disorders it may occasion, either by its doctrines, or the manner in which its discipline is exerted? These cares and duties can only belong to the sovereign, and nothing can dispense with his discharging them.

Authorities and examples.Hence we see that the prerogatives of the crown, in ecclesiastical affairs, have been constantly and faithfully defended by the parliaments of France. The wise and learned magistrates of whom those illustrious bodies are composed, are sensible of the maxims which sound reason dictates on this subject. They know how important it is not to suffer an affair of so delicate a nature, so extensive in its connections and influence, and so momentous in its consequences, to be placed beyond the reach of the public authority.—What! Shall ecclesiastics presume to propose to the people, as an article of faith, some obscure and useless dogma, which constitutes no essential part of the received religion?—shall they exclude from the church, and defame those who do not shew a blind obedience?—shall they refuse them the sacraments, and even the rites of burial?—and shall not the prince have power to protect his subjects, and preserve the kingdom from a dangerous schism?

The kings of England have asserted the prerogatives of their crown: they have caused themselves to be acknowledged heads of the church; and this regulation is equally approved by reason and sound policy, and is also conformable to ancient custom. The first christian emperors exercised all the functions of heads of the church; they made laws on subjects relating to it, —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 religion subject to it, without offering violence to their consciences. They have prepared a formulary of the doctrines that are to be preached, and published laws of ecclesiastical discipline, such as they would have it exercised in the countries under their jurisdiction,—in order that those who will not conform to these establishments may not devote themselves to the service of the church. They keep all the ministers of religion in a lawful dependence, and suffer no exertion of church discipline but under their own authority. It is not probable that religion will ever occasion disturbances in these republics.

§145. Pernicious consequences of the contrary opinion.If Constantine and his successors had caused themselves to be formally acknowledged heads of the church,—and if Christian kings and princes had, in this instance, known how to maintain the rights of sovereignty,—would the world ever have witnessed those horrid disorders produced by the pride and ambition of some popes and ecclesiastics, emboldened by the weakness of princes, and supported by the superstition of the people,—rivers of blood shed in the quarrels of monks, about speculative questions that were often unintelligible, and almost always as useless to the salvation of souls, as in themselves indifferent to the welfare of society,—citizens and even brothers armed against each other,—subjects excited to revolt, and kings hurled from their thrones? Tantum religio potuit suadere malorum! The history of the emperors Henry IV. Frederic I. Frederic II. and Louis of Bavaria, are well known. Was it not the independence of the ecclesiastics,— was it not that system in which the affairs of religion are submitted to a foreign power,—that plunged France into the horrors of the league, and had nearly deprived her of the best and greatest of her kings? Had it not been for that strange and dangerous system, would a foreigner, pope Sixtus V. have undertaken to violate the fundamental law of the kingdom, and declared the lawful heir incapable of wearing the crown? Would the world have seen, at other times and in other places, the succession to the crown rendered uncertain by a bare informality—the want of a dispensation, whose validity was disputed, and which a foreign prelate claimed the sole right of granting? Would that same foreigner have arrogated to himself the power of pronouncing on the legitimacy of the issue of a king? Would kings have been assassinated in consequence of a detestable doctrine? 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 peace to their people, because no decision could be formed within their own dominions on articles or conditions in which religion was interested?

§146. The abuses particularised. 1. The power of the popes.All we have advanced on this subject, so evidently flows from the notions of independence and sovereignty, that it will never be disputed by any honest man who endeavours to reason justly. If a state cannot finally determine every thing relating to religion, the nation is not free, and the prince is but half a sovereign. There is no medium in this case; either each state must, within its own territories, possess supreme power in this respect, as well as in all others, or we must adopt the system of Boniface VIII. and consider all Roman catholic countries as forming only one state, of which the pope shall be the supreme head, and the kings subordinate administrators of temporal affairs, each in his province,— nearly as the sultans were formerly under the authority of the caliphs. We know that the above-mentioned pope had the presumption to write to Philip the Fair, king of France, Scire te volumus, quod in spiritualibus & tempo-ralibus nobis subes —“We would have thee know that thou art subject to us as well in temporals as in spirituals.” And we may see in the canon law his famous bull Unam sanctam, in which he attributes to the church two swords, or a double power, spiritual and temporal,—condemns those who think otherwise, as men, who, after the example of the Manicheans, establish two principles,—and finally declares, that it is an article of faith, necessary to salvation, to believe that every human creature is subject to the Roman pontiff.

We shall consider the enormous power of the popes as the first abuse that sprung from this system, which divests sovereigns of their authority in matters of religion. This power in a foreign court directly militates against the independence of nations and the sovereignty of princes. It is capable of overturning a state; and wherever it is acknowledged, the sovereign finds it impossible to exercise his authority in such a manner as is most for the advantage of the nation. We have already, in the last section, given several remarkable instances of this; and history presents others without number. The senate of Sweden having condemned Trollius, archbishop of Upsal, for the crime of rebellion, to be degraded from his see, and to end his days in a monastery, pope Leo X. had the audacity to excommunicate the administrator Steno, and the whole senate, and sentenced them to rebuild at their own expense a fortress belonging to the archbishop, which they had caused to be demolished, and pay a fine of a hundred thousand ducats to the deposed prelate. The barbarous Christiern, king of Denmark, took advantage of this decree to lay waste the territories of Sweden, and to spill the blood of the most illustrious of her nobility. Paul V. thundered out an interdict against Venice, on account of some very wise laws made with respect to the government of the city, but which displeased that pontiff, who thus threw the republic into an embarrassment, from which all the wisdom and firmness of the senate found it difficult to extricate it. Pius V. in his bull In 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 authority of sovereigns?

In those unhappy times, those dark ages that preceded the revival of literature and the reformation, the popes attempted to regulate the actions of princes, under the pretence of conscience,—to judge of the validity of their treaties,—to break their alliances, and declare them null and void. But those attempts met with a vigorous resistance, even in a country which is generally thought to have then possessed valour alone, with a very small portion of knowledge. The pope’s nuncio, in order to detach the Swiss from the interests of France, published a monitory against all those cantons that favoured Charles VIII. declaring them excommunicated, if within the space of fifteen days they did not abandon the cause of that prince, and enter into the confederacy which was formed against him: but the Swiss opposed this act by protesting against it as an iniquitous abuse, and caused their protest to be publicly posted up in all the places under their jurisdiction,—thus shewing their contempt for a proceeding that was equally absurd and derogatory to the rights of sovereigns. We shall mention several other similar attempts, when we come to treat of the faith of treaties.

§147. 2. Important employments conferred by a foreign power.This power in the popes has given birth to another abuse, that deserves the utmost attention from a wise government. We see several countries in which ecclesiastical dignities, and all the higher benefices, are distributed by a foreign power,—by the pope,—who bestows them on his creatures, and very often on men who are not subjects of the state. This practice is at once a violation of the nation’s rights, and of the principles of common policy. A nation ought not to suffer foreigners to dictate laws to her, to interfere in her concerns, or deprive her of her natural advantages: and yet how does it happen that so many states still tamely suffer a foreigner to dispose of posts and employments of the highest importance to their peace and happiness? The princes who consented to the introduction of so enormous an abuse, were equally wanting to themselves and their people. In our times the court of Spain has been obliged to expend immense sums in order to recover without danger the peaceable possession of a right which essentially belonged to the nation, or its head.

§148. 3. Powerful subjects dependent on a foreign court.Even in those states whose sovereigns have preserved so important a prerogative of the crown, the abuse in a great measure subsists. The sovereign nominates indeed to bishoprics and great benefices; but his authority is not sufficient to enable the persons nominated to enter on the exercise of their functions; they must also have bulls from Rome. By this and a thousand other links of attachment, the whole body of the clergy, in those countries, still depend on the court of Rome; from it they expect dignities,—from it, that purple, which, according to the proud pretensions of those who are invested with it, renders them equal to sovereigns: from the resentment of that court, they have every thing to fear; and of course we see them almost invariably disposed to gratify it on every occasion. On the other hand, the court of Rome supports those clergy with all her might,—assists them by her politics and credit,—protects them against their enemies, and against those who would set bounds to their power,—nay, often against the just indignation of their sovereign,—and by this means attaches them to her still more strongly. Is it not doing an injury to the rights of society, and shocking the first elements of government, thus to suffer a great number of subjects, and even subjects in high posts, to be dependent on a foreign prince, and entirely devoted to him? Would a prudent sovereign receive men who preached such doctrines? There needed no more to cause all the missionaries to be driven from China.

§149. 4. The celibacy of the priests.It was for the purpose of more firmly securing the attachment of churchmen, that the celibacy of the clergy was invented. A priest, a prelate, already bound to the see of Rome by his functions and his hopes, is further detached from his country, by the celibacy he is obliged to observe. He is not connected with civil society by a family: his grand interests are all 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. Every body knows that the religious orders are a sort of papal militia, spread over the face of the earth, to support and advance the interests of their monarch. This is doubtless a strange abuse,—a subversion of the first laws of society. But this is not all: if the prelates were married, they might enrich the state with a number of good citizens; rich benefices affording them the means of giving their legitimate children a suitable education. But what a multitude of men are there in Convents.convents, consecrated to idleness under the cloak of devotion! Equally useless to society in peace and war, they neither serve it by their labour in necessary professions, nor by their courage in arms: yet they enjoy immense revenues; and the people are obliged, by the sweat of their brow, to furnish support for these swarms of sluggards. What should we think of a husbandman who pro-tected useless hornets to devour the honey of his bees? It is not the fault of the fanatic preachers of over-strained sanctity, if all their devotees do not imitate the celibacy of the monks. How happened it that princes could suffer them publicly to extol, as the most sublime virtue, a practice equally repugnant to nature, and pernicious to society? Among the Romans, laws were made to diminish the number of those who lived in celibacy, and to favour marriage: 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 fathers of the church have censured those laws against celibacy,—doubtless, says a great man,with a laudable zeal for the things of another life, but with very little knowledge of the affairs of this. That great man lived in the church of Rome:—he did not dare to assert in direct terms, that voluntary celibacy is to be condemned even with respect to conscience and the things of another life:—but it is certainly a conduct well becoming genuine piety, to conform ourselves to nature, to fulfil the views of the Creator, and to labour for the welfare of society. If a person is capable of rearing a family, let him marry, let him be attentive to give his children a good education:—in so doing, he will discharge his duty, and be undoubtedly in the road to salvation.

§150. 5. Enormous pretensions of the clergy.The enormous and dangerous pretensions of the clergy are also another consequence of this system which places every thing relating to religion beyond the reach of the civil power. In the first place, the ecclesiastics, under pretence of the holiness of their functions, have raised themselves Pre-eminence.above all the other citizens, even the principal magistrates: and, contrary to the express injunctions of their master, who said to his apostles seek not the first places at feasts, they have almost every where arrogated to themselves the first rank. Their head, in the Roman church, obliges sovereigns to kiss his feet; emperors have held the bridle of his horse; and if bishops or even simple priests do not at present raise themselves above their prince, it is because the times will not permit it: they have not always been so modest; and one of their writers has had the assurance to assert, that a priest is as much above a king, as a man is above a beast. How many authors, better known and more esteemed than the one just quoted, have taken a pleasure in praising and extolling that silly speech attributed to the emperor Theodosius the First—Ambrose has taught me the great distance there is between the empire and the priesthood!

We have already observed that ecclesiastics ought to be honoured: but modesty, and even humility, should characterise them: and does it become them to forget it in their own conduct, while they preach it to others? I would not mention a vain ceremonial, were it not attended with very material consequences, from the pride with which it inspires many priests, and the impressions it may make on the minds of the people. It is essentially necessary to good order, that subjects should behold none in society so respectable as their sovereign, and, next to him, those on whom he has devolved a part of his authority.

§151. 6. Independence.Ecclesiastics have not stopped in so fair a path. Not contented with rendering themselves independent with respect to their functions,—by the aid of the court of Immunities.Rome, they have even attempted to withdraw themselves entirely, and in every respect, from all subjection to the political authority. There have been times when an ecclesiastic could not be brought before a secular tribunal for any crime whatsoever. The canon law declares expressly, It is indecent for laymen to judge a churchman. The popes Paul III. Pius V. and Urban VIII. excommunicated all lay judges who should presume to undertake the trial of ecclesiastics. Even the bishops of France have not been afraid to say on several occasions, that they did not depend on any temporal prince; and, in 1656, the general assembly of the French clergy had the assurance to use the following expressions—“The decree of council having been read, was disapproved by the assembly, because it leaves the king judge over the bishops, and seems to subject their immunities to his judges. There are decrees of the popes that excommunicate whoever imprisons a bishop. According to the principles of the church of Rome, a prince has not the power of punishing an ecclesiastic with death, though a rebel, or a malefactor;— he must first apply to the ecclesiastical power; and the latter will, if it thinks proper, deliver up the culprit to the secular arm, after having degraded him. History affords us a thousand examples of bishops who remained unpunished, or were but slightly chastised, for crimes for which nobles of the highest rank forfeited their lives. John de Braganza, king of Portugal, justly inflicted the penalty of death on those noblemen who had conspired his destruction; but he did not dare to put to death the archbishop of Braga, the author of that detestable plot.

For an entire body of men, numerous and powerful, to stand beyond the reach of the public authority, and be dependent on a foreign court, is an entire subversion of order in the republic, and a manifest diminution of the sovereignty. This is a mortal stab given to society, whose very essence it is that every citizen should be subject to the public authority. Indeed the immunity which the clergy arrogate to themselves in this respect, is so inimical to the natural and necessary rights of a nation, that the king himself has not the power of granting it. But churchmen will tell us they derive this immunity from God himself: but till they have furnished some proof of their pretensions, let us adhere to this certain principle, that God desires the safety of states, and not that which will only be productive of disorder and destruction to them.

§152. 7. Immunity of church possessions.The same immunity is claimed for the possessions of the church. The state might, no doubt, exempt those possessions from every species of tax at a time when they were scarcely sufficient for the support of the ecclesiastics: but, for that favour, these men ought to be indebted to the public authority alone, which has always a right to revoke it, whenever the welfare of the state makes it necessary. It being one of the fundamental and essential laws of every society, that, in case of necessity, the wealth of all the members ought to contribute proportionally to the common necessities,—the prince himself cannot, of his own authority, grant a total exemption to a very numerous and rich body, without being guilty of extreme injustice to the rest of his subjects, on whom, in consequence of that exemption, the whole weight of the burthen will fall.

The possessions of the church are so far from being entitled to an exemption on account of their being consecrated to God, that, on the contrary, it is for that very reason they ought to be taken the first for the use and safety of the state. For nothing is more agreeable to the common Father of mankind than to save a state from ruin. God himself having no need of any thing, the consecration of wealth to him is but a dedication of it to such uses as shall be agreeable to him. Besides, a great part of the revenues of the church, by the confession of the clergy themselves, is destined for the poor. When the state is in necessity, it is doubtless the first and principal pauper, and the most worthy of assistance. We may extend this principle even to the most common cases, and safely assert that to supply a part of the current expenses of the state from the revenues of the church, and thus take so much from the weight of the people’s burthen, is really giving a part of those revenues to the poor, according to their original destination. But it is really contrary to religion and the intentions of the founders, to waste in pomp, luxury, and epicurism, those revenues that ought to be consecrated to the relief of the poor.

§153. 8. Excommunication of men in office.Not satisfied however with rendering themselves independent, the ecclesiastics undertook to bring mankind under their dominion; and indeed they had reason to despise the stupid mortals who suffered them to proceed in their plan. Excommunication was a formidable weapon among ignorant and superstitious men, who neither knew how to keep it within its proper bounds, nor to distinguish between the use and the abuse of it. Hence arose disorders, which have prevailed even in some protestant countries. Churchmen have presumed, by their own authority alone, to excommunicate men in high employments, magistrates whose functions were daily useful to society,—and have boldly asserted that those officers of the state, being struck with the thunders of the church, could no longer discharge the duty of their posts. What a perversion of order and reason! What! shall not a nation be allowed to intrust its affairs, its happiness, its repose and safety, to the hands of those whom it deems the most skilful and the most worthy of that trust? Shall the power of a churchman, whenever he pleases, deprive the state of its wisest conductors, of its firmest supports, and rob the prince of his most faithful servants? So absurd a pretension has been condemned by princes, and even by prelates, respectable for their character and judgment. We read in the 171st letter of Ives de Chartres, to the archbishop of Sens, that the royal capi-tularies (conformably to the thirteenth canon of the twelfth council of Toledo, held in the year 681) enjoined the priests to admit to their conversation all those whom the king’s majesty had received into favour, or entertained at his table, though they had been excommunicated by them, or by others,—in order that the church might not appear to reject or condemn those whom the king was pleased to employ in his service.

§154. 9. And of sovereigns themselves.The excommunications pronounced against the sovereigns themselves, and accompanied with the absolution of their subjects from their oaths of allegiance, put the finishing stroke to this enormous abuse; and it is almost incredible that nations should have suffered such odious procedures. We have slightly touched on this subject in §§145 and 146. The thirteenth century gives striking instances of it. Otho IV. for endeavouring to oblige several provinces of Italy to submit to the laws of the empire, was excommunicated and deprived of the empire by Innocent III. and his subjects absolved from their oath of allegiance. Finally, this unfortunate emperor, being abandoned by the princes, was obliged to resign the crown to Frederic II. John, king of England, endeavouring to maintain the rights of his kingdom in the election of an archbishop of Canterbury, found himself exposed to the audacious enterprises of the same pope. Innocent excommunicated the king,—laid the whole kingdom under an interdict,—had the presumption to declare John unworthy of the throne, and to absolve his subjects from their oath of fidelity: he stirred up the clergy against him,—excited his subjects to rebel,—solicited the king of France to take up arms to dethrone him,— publishing at the same time a crusade against him, as he would have done against the Saracens. The king of England at first appeared determined to defend himself with vigour: but soon losing courage, he suffered himself to be brought to such an excess of infamy, as to resign his kingdoms into the hands of the pope’s legate, to receive them back from him, and hold them as a fief of the church, on condition of paying tribute.

The popes were not the only persons guilty of such enormities: there have also been councils who bore a part in them. That of Lyons, summoned by Innocent IV. in the year 1245, had the audacity to cite the emperor Frederic II. to appear before them in order to exculpate himself from the charges brought against him,—threatening him with the thunders of the church if he failed to do it. That great prince did not give himself much trouble about so irregular a proceeding. He said, “that the pope aimed at rendering himself both a judge and a sovereign; but that, from all antiquity, the emperors themselves had called councils, where the popes and prelates rendered to them, as to their sovereigns, the respect and obedience that was their due.” The emperor, however, thinking it necessary to yield a little to the superstition of the times, condescended to send ambassadors to the council, to defend his cause: but this did not prevent the pope from excommunicating him, and declaring him deprived of the crown. Frederic, like a man of a superior genius, laughed at the empty thunders of the Vatican, and proved himself able to preserve the crown in spite of the election of Henry, Landgrave of Thuringia, whom the ecclesiastical electors, and many bishops, had presumed to declare king of the Romans,—but who obtained little more by that election, than the ridiculous title of king of the priests.

I should never have done, were I to accumulate examples: but those I have already quoted are but too many for the honour of humanity. It is an humiliating sight to behold the excess of folly to which superstition had reduced the nations of Europe in those unhappy times.

§155. 10. The clergy drawing every thing to themselves, and disturbing the order of justice.By means of the same spiritual arms, the clergy drew every thing to themselves, usurped the authority of the tribunals, and disturbed the course of justice. They claimed a right to take cognisance of all causes, on account of sin, of which (says Innocent III.)every man of sense must know that the cognisance belongs to our ministry. In the year 1329, the prelates of France had the assurance to tell king Philip de Valois, that, to prevent causes of any kind from being brought before the ecclesiastical courts, was depriving the church of all its rights, omnia ecclesiarum jura tollere. And accordingly it was their aim to have to themselves the decision of all disputes. They boldly opposed the civil authority, and made themselves feared by proceeding in the way of excommunication. It even happened sometimes, that, as dioceses were not always confined to the extent of the political territory, a bishop would summon foreigners before his tribunal, for causes purely civil, and take upon him to decide them, in manifest violation of the rights of nations. To such a height had the disorder arisen three or four centuries ago, that our wise ancestors thought themselves obliged to take serious measures to put a stop to it; and stipulated in their treaties, that none of the confederates should be summoned before spiritual courts, for money debts, since every one ought to be contented with the ordinary modes of justice that were observed in the 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.

§156. 11. Money drawn to Rome.This burlesque invention leads us to remark another abuse, manifestly contrary to the rules of a wise policy, and to the duty a nation owes to herself,—I mean the immense sums, which bulls, dispensations, &c. annually drew to Rome, from all the countries in communion with her. How much might be said on the scandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavouring to gain too much, suffered irreparable losses.

§157. 12. Laws and customs contrary to the welfare of states.Finally, that independent authority intrusted to ecclesiastics, who were often incapable of understanding the true maxims of government, or too careless to take the trouble of studying them, and whose minds were wholly occupied by a visionary fanaticism, by empty speculations, and notions of a chimerical and overstrained purity,—that authority, I say, produced, under the pretence of sanctity, laws and customs that were pernicious to the state. Some of these we have noticed: but a very remarkable instance is mentioned by Grotius. “In the ancient Greek church,” says he, “was long observed a canon, by which those who had killed an enemy in any war whatsoever, were excommunicated for three years.” A fine reward decreed for the heroes who defended their country, instead of the crowns and triumphs with which pagan Rome had been accustomed to honour them! Pagan Rome became mistress of the world:—she adorned her bravest warriors with crowns. The empire, having embraced christianity, soon became a prey to barbarians:—her subjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themselves pursuing the path to heaven, and actually found themselves in the high road to riches and greatness.

CHAPTER XIII

Of Justice and Polity.

§158. A nation ought to make justice reign.Next to the care of religion, one of the principal duties of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burthensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§15) that men have bound themselves by the engagements of society, and consented to divest themselves, in its favour, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with 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, repose, and prosperity. Confusion, disorder, and despondency, will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes: without this, the civil virtues will become extinguished, and the society weakened.

§159. To establish good laws.There are two methods of making justice flourish,—good laws, and the attention of the superiors to see them executed. In treating of the constitution of a state (Chap. III.) we have already shewn, that a nation ought to establish just and wise laws, and have also pointed out the reasons, why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights without being misled by self-deception: sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law. It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These again are the civil laws.

§160. To enforce them.The best laws are useless, if they be not observed. The nation ought then to take pains to support them, and to cause them to be respected and punctually executed: with this view she cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity.

§161. Functions and duties of the prince in this respect.We have already observed (§41) that the sovereign, who represents a nation and is invested with its authority, is also charged with its duties. An attention to make justice flourish in the state must then be one of the principal functions of the prince; and nothing can be more worthy of the sovereign majesty. The emperor Justinian thus begins his book of the Institutes: Imperatoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus, & bellorum & pacis, recte possit gubernari. The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either reserve the legislative power to itself, or intrust it to a select body,—it has also a right, if it thinks proper, to establish a supreme tribunal to judge of all disputes, independently of the prince. But the conductor of the state must naturally have a considerable share in legislation, and it may even be entirely intrusted to him. In this last case, it is he who must establish salutary laws, dictated by wisdom and equity: but in all cases, he should be the guardian of the law; he should watch over those who are invested with authority, and confine each individual within the bounds of duty.

§162. How he is to dispense justice.The executive power naturally belongs to the sovereign,—to every conductor of a people: he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it. When the laws are established, it is the prince’s province to have them put in execution. To support them with vigour, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the judge of his people. We have seen the chiefs of some small states perform these functions themselves: but this custom becomes inconvenient, and even impossible, in a great kingdom.

§163. He ought to appoint enlightened and upright judges.The best and safest method of distributing justice is by establishing judges, distinguished by their integrity and knowledge, to take cognisance of all the disputes that may arise between the citizens. It is impossible for the prince to take upon himself this painful task: he cannot spare sufficient time either for the thorough investigation of all causes, or even for the acquisition of the knowledge necessary to decide them. As the sovereign cannot personally discharge all the functions of government, he should, with a just discernment, reserve to himself such as he can successfully perform, and are of most importance,—intrusting the others to officers and magistrates who shall execute them under his authority. There is no inconvenience in trusting the decision of a law-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 ordinary courts should determine causes relating to the revenue.The establishment of courts of justice is particularly necessary for the decision of all fiscal causes,—that is to say, all the disputes that may arise between the subjects on the one hand, and, on the other, the persons who exert the profitable prerogatives of the prince. It would be very unbecoming, and highly improper for a prince, to take upon him to give judgment in his own cause:—he cannot be too much on his guard against the illusions of interest and self-love; and even though he were capable of resisting their influence, still he ought not to expose his character to the rash judgments of the multitude. These important reasons ought even to prevent his submitting the decision of causes in which he is concerned, to the ministers and counsellors particularly attached to his person. In all well-regulated states, in countries that are really states, and not the dominions of a despot, the ordinary tribunals decide all causes in which the sovereign is a party, with as much freedom as those between private persons.

§165. There ought to be established supreme courts of justice, wherein causes should be finally determined.The end of all trials at law is justly to determine the disputes that arise between the citizens. If, therefore, suits are prosecuted before an inferior judge, who examines all the circumstances and proofs relating to them, it is very proper, that, for the greater safety, the party condemned should be allowed to appeal to a superior tribunal, where the sentence of the former judge may be examined, and reversed, if it appear to be ill-founded. But it is necessary that this supreme tribunal should have the authority of pronouncing a definitive sentence without appeal: otherwise the whole proceeding will be vain, and the dispute can never be determined.

The custom of having recourse to the prince himself, by laying a complaint at the foot of the throne, when the cause has been finally determined by a supreme court, appears to be subject to very great inconveniences. It is more easy to deceive the prince by specious reasons, than a number of magistrates well skilled in the knowledge of the laws; and experience too plainly shews, what powerful resources are derived from favour and intrigue in the courts of kings. If this practice be authorised by the laws of the state, the prince ought always to fear that these complaints are only formed with a view of protracting a suit, and procrastinating a just condemnation. A just and wise sovereign will not admit them without great caution; and if he reverses the sentence that is complained of, he ought not to try the cause himself, but submit it to the examination of another tribunal, as is the practice in France. The ruinous length of these proceedings authorises us to say, that it is more convenient and advantageous to the state, to establish a sovereign tribunal, whose definitive decrees should not be subject to a reversal even by the prince himself. It is sufficient for the security of justice, that the sovereign keep a watchful eye over the judges and magistrates, in the same manner as he is bound to watch all the other officers in the state,— and that he have power to call to an account and to punish such as are guilty of prevarication.

§166. The prince ought to preserve the forms of justice.When once this sovereign tribunal is established, the prince cannot meddle with its decrees; and, in general, he is absolutely obliged to preserve and maintain the forms of justice. Every attempt to violate them is an assumption of arbitrary power, to which it cannot be presumed that any nation could ever have intended to subject itself.

When those forms are defective, it is the business of the legislator to reform them. This being done or procured in a manner agreeable to the fundamental laws, will be one of the most salutary benefits the sovereign can bestow upon his people. To preserve the citizens from the danger of ruining themselves in defending their rights,—to repress and destroy that monster, chicanery,—will be an action more glorious in the eyes of the wise man, than all the exploits of a conqueror.

§167. The prince ought to support the authority of the judges.Justice is administered in the name of the sovereign; the prince relies on the judgment of the courts, and, with good reason, looks upon their decisions as sound law and justice. His part in this branch of the government is then to maintain the authority of the judges, and to cause their sentences to be executed; without which, they would be vain and delusive; for justice would not be rendered to the citizens.

§168. Of distributive justice.There is another kind of justice named attributive or distributive, which in general consists in treating every one according to his deserts. This virtue ought to regulate the distribution of public employments, honours, and rewards in a state. It is, in the first place, a duty the nation owes The distribution of employments and rewards.to herself, to encourage good citizens, to excite every one to virtue by honours and rewards, and to intrust with employments such persons only as are capable of properly discharging them. In the next place, it is a duty the nation owes to individuals, to shew herself duly attentive to reward and honour merit. Although a sovereign has the power of distributing his favours and employments to whomsoever he pleases, and nobody has a perfect right to any post or dignity,—yet a man who by intense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation. There is hardly any fault that in a course of time can become more prejudicial to a state: it introduces into it a general relaxation; and its public affairs, being managed by incompetent hands, cannot fail to be attended with ill-success. A powerful state may support itself for some time by its own weight; but at length it falls into decay; and this is perhaps one of the principal causes of those revolutions observable in great empires. The sovereign is attentive to the choice of those he employs, while he feels himself obliged to watch over his own safety, and to be on his guard: but when once he thinks himself elevated to such a pitch of greatness and power as leaves him nothing to fear, he follows his own caprice, and all public offices are distributed by favour.

§169. Punishment of transgressors.The punishment of transgressors commonly belongs to distributive justice, of which it is really a branch; since good order requires that malefactors should be made to suffer the punishments they have deserved. But if we would clearly establish this on its true foundations, we must recur to first principles. Foundation of the right of punishing.The right of punishing, which in a state of nature belongs to each individual, is founded on the right of personal safety. Every man has a right to preserve himself from injury, and by force to provide for his own security, against those who unjustly attack him. For this purpose, he may, when injured, inflict a punishment on the aggressor, as well with the view of putting it out of his power to injure him for the future, or of reforming him, as of restraining, by his example, all those who might be tempted to imitate him. Now, when men unite in society,—as the society is thenceforward charged with the duty of providing for the safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large. And as it is a moral person, capable also of being injured, it has a right to provide for its own safety, by punishing those who trespass against it;—that is to say, it has a right to punish public delinquents. Hence arises the right of the sword, which belongs to a nation, or to its conductor. When the society use it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice. Two things are to be considered in this part of government,—the laws, and their execution.

§170. Criminal laws.It would be dangerous to leave the punishment of transgressors entirely to the discretion of those who are invested with authority. The passions might interfere in a business which ought to be regulated only by justice and wisdom. The punishment, pre-ordained for an evil action, lays a more effectual restraint on the wicked, than a vague fear, in which they may deceive themselves. In short, the people, who are commonly moved at the sight of a suffering wretch, are better convinced of the justice of his punishment, when it is inflicted by the laws themselves. Every well-governed state ought then to have its laws for the punishment of criminals. It belongs to the legislative power, whatever that be, to establish them with justice and wisdom. But this is not a proper place for giving a general theory of them: we shall therefore only say, that each nation ought, in this as in every other instance, to chuse such laws as may best suit her peculiar circumstances.

§171. Degree of punishment.We shall only make one observation, which is connected with the subject in hand, and relates to the degree of punishment. From the foundation even of the right of punishing, and from the lawful end of inflicting penalties, arises the necessity of keeping them within just bounds. Since they are designed to procure the safety of the state and of the citizens, they ought never to be extended beyond what that safety requires. To say that any punishment is just since the transgressor knew beforehand the penalty he was about to incur, is using a barbarous language, repugnant to humanity, and to the law of nature, which forbids our doing any ill to others, unless they lay us under the necessity of inflicting it in our own defence and for our own security. Whenever then a particular crime is not much to be feared in society, as when the opportunities of committing it are very rare, or when the subjects are not inclined to it, too rigorous punishments ought not to be used to suppress it. Attention ought also to be paid to the nature of the crime; and the punishment should be proportioned to the degree of injury done to the public tranquillity and the safety of society, and the wickedness it supposes in the criminal.

These maxims are not only dictated by justice and equity, but also as forcibly recommended by prudence and the art of government. Experience shews us, that the imagination becomes familiarised to objects which are frequently presented to it. If, therefore, terrible punishments are multiplied, the people will become daily less affected by them, and at length contract, like the Japanese, a savage and ferocious character:— these bloody spectacles will then no longer produce the effect designed; for they will cease to terrify the wicked. It is with these examples as with honours:—a prince who multiplies titles and distinctions to excess, soon depreciates them, and makes an injudicious use of one of the most powerful and convenient springs of government. When we recollect the practice of the ancient Romans with respect to criminals,—when we reflect on their scrupulous attention to spare the blood of the citizens,— we cannot fail to be struck at seeing with how little ceremony it is now- a-days shed in the generality of states. Was then the Roman republic but ill governed? Does better order and greater security reign among us?— It is not so much the cruelty of the punishments, as a strict punctuality in enforcing the penal code, that keeps mankind within the bounds of duty: and if simple robbery is punished with death, what further punishment is reserved to check the hand of the murderer?

§172. Execution of the laws.The execution of the laws belongs to the conductor of the state: he is intrusted with the care of it, and is indispensably obliged to discharge it with wisdom. The prince then is to see that the criminal laws be put in execution; but he is not to attempt in his own person to try the guilty. Besides the reasons we have already alleged in treating of civil causes, and which are of still greater weight in regard to those of a criminal nature,—to appear in the character of a judge pronouncing sentence on a wretched criminal, would ill become the majesty of the sovereign, who ought in every thing to appear as the father of his people. It is a very wise maxim commonly received in France, that the prince ought to reserve to himself all matters of favour, and leave it to the magistrates to execute the rigour of justice. But then justice ought to be exercised in his name, and under his authority. A good prince will keep a watchful eye over the conduct of the magistrates; he will oblige them to observe scrupulously the established forms, and will himself take care never to break through them. Every sovereign who neglects or violates the forms of justice in the prosecution of criminals, makes large strides towards tyranny: and the liberty of the citizens is at an end, when once they cease to be certain that they cannot be condemned, except in pursuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accused party to commissioners chosen at the pleasure of the court, was the tyrannical invention of some ministers who abused the authority of their master. By this irregular and odious procedure, a famous minister always succeeded in destroying his enemies. A good prince will never give his consent to such a proceeding, if he has sufficient discernment to foresee the dreadful abuse his ministers may make of it. If the prince ought not to pass sentence himself,—for the same reason, he ought not to aggravate the sentence passed by the judges.

§173. Right of pardoning.The very nature of government requires that the executor of the laws should have the power of dispensing with them, when this may be done without injury to any person, and in certain particular cases where the welfare of the state requires an exception. Hence the right of granting pardons is one of the attributes of sovereignty. But, in his whole conduct, in his severity as well as in his mercy, the sovereign ought to have no other object in view than the greater advantage of society. A wise prince knows how to reconcile justice with clemency,—the care of the public safety, with that pity which is due to the unfortunate.

§174. Internal police.The internal police consists in the attention of the prince and magistrates to preserve every thing in order. Wise regulations ought to prescribe whatever will best contribute to the public safety, utility and convenience; and those who are invested with authority cannot be too attentive to enforce them. By a wise police, the sovereign accustoms the people to order and obedience, and preserves peace, tranquillity, and concord among the citizens. The magistrates of Holland are said to possess extraordinary talents in this respect:—a better police prevails in their cities, and even their establishments in the Indies, than in any other places in the known world.

§175. Duel, or single combat.Laws and the authority of the magistrates having been substituted in the room of private war, the conductor of a nation ought not to suffer individuals to attempt to do themselves justice, when they can have recourse to the magistrates. Duelling—that species of combat, in which the parties engage on account of a private quarrel—is a manifest disorder, repugnant to the ends of civil society. This phrenzy was unknown to the ancient Greeks and Romans, who raised to such a height the glory of their arms: we received it from barbarous nations who knew no other law but the sword. Louis XIV. deserves the greatest praise for his endeavours to abolish this savage custom.

§176. Means of putting a stop to this disorder.But why was not that prince made sensible that the most severe punishments were incapable of curing the rage for duelling? They did not reach the source of the evil; and since a ridiculous prejudice had persuaded all the nobility and gentlemen of the army, that a man who wears a sword is bound in honour to avenge, with his own hand, the least injury he has received; this is the principle on which it is proper to proceed. We must destroy this prejudice, or restrain it by a motive of the same nature. While a nobleman, by obeying the law, shall be regarded by his equals as a coward and as a man dishonoured,—while an officer in the same case shall be forced to quit the service,—can you hinder his fighting by threatening him with death? On the contrary, he will place a part of his bravery in doubly exposing his life, in order to wash away the affront. And certainly, while the prejudice subsists, while a nobleman or an officer cannot act in opposition to it, without embittering the rest of his life, I do not know whether we can justly punish him who is forced to submit to its tyranny, or whether he be very guilty with respect to morality. That worldly honour, be it as false and chimerical as you please, is to him a substantial and necessary possession, since without it, he can neither live with his equals, nor exercise a profession that is often his only resource. When therefore any insolent fellow would unjustly ravish from him that chimera so esteemed and so necessary, why may he not defend it as he would his life and property against a robber? As the state does not permit an individual to pursue with arms in his hand the usurper of his property, because he may obtain justice from the magistrate,—so, if the sovereign will not allow him to draw his sword against the man from whom he has received an insult, he ought necessarily to take such measures that the patience and obedience of the citizen who has been insulted, shall not prove prejudicial to him. Society cannot deprive man of his natural right of making war against an aggressor, without furnishing him with some other means of securing himself from the evil his enemy would do him. On all those occasions where the public authority cannot lend us its assistance, we resume our original and natural right of self-defence. Thus a traveller may, without hesitation, kill the robber who attacks him on the highway; because it would, at that moment, be in vain for him to implore the protection of the laws and of the magistrate. Thus a chaste virgin would be praised for taking away the life of a brutal ravisher who attempted to force her to his desires.

Till men have got rid of this Gothic idea, that honour obliges them, even in contempt of the laws, to avenge their personal injuries with their own hands, the most effectual method of putting a stop to the effects of this prejudice would perhaps be to make a total distinction between the offended and the aggressor,—to pardon the former without difficulty, when it appears that his honour has been really attacked,—and to exercise justice without mercy on the party who has committed the outrage. And as to those who draw the sword for trifles and punctilios, for little piques or railleries in which honour is not concerned, I would have them severely punished. By this means a restraint would be put on those peevish and insolent folks, who often reduce even the most 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 unavoidable) without incurring the penalties of the law, both parties would curb their passions; by which means the quarrel would fall of itself, and be attended with no consequences. It frequently happens that a bully is at bottom a coward; he gives himself haughty airs, and offers insult, in hopes that the rigour of the law will oblige people to put up with his insolence. And what is the consequence?—A man of spirit will run every risk, rather than submit to be insulted:—the aggressor dares not recede: and a combat ensues, which would not have taken place, if the latter could have once imagined that there was nothing to prevent the other from chastising him for his presumption,—the offended person being acquitted by the same law that condemns the aggressor.

To this first law, whose efficacy would, I doubt not, be soon proved by experience, it would be proper to add the following regulations:—1. Since it is an established custom that the nobility and military men should appear armed even in time of peace, care should be taken to enforce a rigid observance of the laws which allow the privilege of wearing swords to these two orders of men only. 2. It would be proper to establish a particular court, to determine, in a summary manner, all affairs of honour between persons of these two orders. The marshals’ court in France is in possession of this power; and it might be invested with it in a more formal manner and to a greater extent. The governors of provinces and strong places, with their general officers,—the colonels and captains of each regiment,—might, in this particular, act as deputies to the marshals. These courts, each in its own department, should alone confer the right of wearing a sword. Every nobleman at sixteen or eighteen years of age, and every soldier at his entrance into the regiment, should be obliged to appear before the court to receive the sword. 3. On its being there delivered to him, he should be informed, that it is intrusted to him only for the defence of his country; and care might be taken to inspire him with true ideas of honour. 4. It appears to me of great importance, to establish, for different cases, punishments of a different nature. Whoever should so far forget himself, as, either by word or deed, to insult a man who wears a sword, might be degraded from the rank of nobility, deprived of the privilege of carrying arms, and subjected to corporal punishment,—even the punishment of death, according to the grossness of the insult: and, as I before observed, no favour should be shewn to the offender in case a duel was the consequence, while at the same time the other party should stand fully acquitted. Those who fight on slight occasions, I would not have condemned to death, unless in such cases where the author of the quarrel,—he, I mean, who carried it so far as to draw his sword, or to give the challenge,—has killed his adversary. People hope to escape punishment, when it is too severe; and, besides, a capital punishment, in such cases, is not considered as infamous. But let them be ignominiously degraded from the rank of nobility and the use of arms, and for ever deprived of the right of wearing a sword, without the least hope of pardon: this would be the most proper method to restrain men of spirit, provided that due care was taken to make a distinction between different offenders, according to the degree of the offence. As to persons below the rank of nobility, and who do not belong to the army, their quarrels should be left to the cognisance of the ordinary courts, which, in case of bloodshed, should punish the offenders according to the common laws against violence and murder. It should be the same with respect to any quarrel that might arise between a commoner and a man entitled to carry arms: it is the business of the ordinary magistrate to preserve order and peace between those two classes of men, who cannot have any points of honour to settle, the one with the other. To protect the people against the violence of those who wear the sword, and to punish the former severely, if they should dare to insult the latter, should further be, as it is at present, the business of the magistrate.

I am sanguine enough to believe that these regulations, and this method of proceeding, if strictly adhered to, would extirpate that monster, duelling, which the most severe laws have been unable to restrain. They go to the source of the evil by preventing quarrels, and oppose a lively sensation of true and real honour to that false and punctilious honour which occasions the spilling of so much blood. It would be worthy a great monarch to make a trial of it: its success would immortalise his name; and by the bare attempt he would merit the love and gratitude of his people.

CHAPTER XIV

The third Object of a good Government,—to fortify itself against external Attacks.

§177. A nation ought to fortify itself against external attacks.We have treated at large of what relates to the felicity of a nation: the subject is equally copious and complicated. Let us now proceed to a third division of the duties which a nation owes to itself,—a third object of good government. One of the ends of political society is to defend itself with its combined strength against all external insult or violence (§15). If the society is not in a condition to repulse an aggressor, it is very imperfect,—it is unequal to the principal object of its destination, and cannot long subsist. The nation ought to put itself in such a state as to be able to repel and humble an unjust enemy: this is an important duty, which the care of its own perfection, and even of its preservation, imposes both on the state and its conductor.

§178. National strength.It is its strength alone that can enable a nation to repulse all aggressors, to secure its rights, and render itself every where respectable. It is called upon by every possible motive, to neglect no circumstance that can tend to place it in this happy situation. The strength of a state consists in three things,—the number of the citizens, their military virtues, and their riches. Under this last article we may comprehend fortresses, artillery, arms, horses, ammunition, and, in general, all that immense apparatus at present necessary in war, since they can all be procured with money.

§179. Increase of population.To increase the number of the citizens as far as it is possible or convenient, is then one of the first objects that claim the attentive care of the state or its conductor: and this will be successfully effected by complying with the obligation to procure the country a plenty of the necessaries of life,—by enabling the people to support their families with the fruits of their labour,—by giving proper directions that the poorer classes, and especially the husbandmen, be not harassed and oppressed by the levying of taxes,—by governing with mildness, and in a manner, which, instead of disgusting and dispersing the present subjects of the state, shall rather attract new ones,—and, finally, by encouraging marriage, after the example of the Romans. That nation, so attentive to every thing capable of increasing and supporting their power, made wise laws against celibacy (as we have already observed in §149), and granted privileges and exemptions to married men, particularly to those who had numerous families: laws that were equally wise and just, since a citizen who rears subjects for the state, has a right to expect more favour from it than the man who chuses to live for himself alone.

Every thing tending to depopulate a country is a defect in a state not overstocked with inhabitants. We have already spoken of convents and the celibacy of priests. It is strange that establishments, so directly repugnant to the duties of a man and a citizen, as well as to the advantage and safety of society, should have found such favour, and that princes, instead of opposing them as it was their duty to do, should have protected and enriched them. A system of policy, that dextrously took advantage of superstition to extend its own power, led princes and subjects astray, caused them to mistake their real duties, and blinded sovereigns even with respect to their own interest. Experience seems at length to have opened the eyes of nations and their conductors; the pope himself (let us mention it to the honour of Benedict XIV.) endeavours gradually to reform so palpable an abuse; by his orders, none in his dominions are any longer permitted to take the vow of celibacy before they are twenty-five years of age. That wise pontiff gives the sovereigns of his communion a salutary example; he invites them to attend at length to the safety of their states,—to narrow at least, if they cannot entirely close up, the avenues of that sink that drains their dominions. Take a view of Germany; and there, in countries which are in all other respects upon an equal footing, you will see the protestant states twice as populous as the catholic ones. Compare the desert state of Spain with that of England teeming with inhabitants:—survey many fine provinces, even in France, destitute of hands to till the soil;—and then tell me, whether the many thousands of both sexes, who are now locked up in convents, would not serve God and their country infinitely better, by peopling those fertile plains with useful cultivators? It is true, indeed, that the catholic cantons of Switzerland are nevertheless very populous: but this is owing to a profound peace, and the nature of the government, which abundantly repair the losses occasioned by convents. Liberty is able to remedy the greatest evils; it is the soul of a state, and was with great justice called by the Romans alma Libertas.

§180. Valour.A cowardly and undisciplined multitude are incapable of repulsing a warlike enemy: the strength of the state consists less in the number than the military virtues of its citizens. Valour, that heroic virtue which makes us undauntedly encounter danger in defence of our country, is the firmest support of the state: it renders it formidable to its enemies, and often even saves it the trouble of defending itself. A state whose reputation in this respect is once well established, will be seldom attacked, if it does not provoke other states by its enterprises. For above two centuries the Swiss have enjoyed a profound peace, while the din of arms resounded all around them, and the rest of Europe was desolated by the ravages of war. Nature gives the foundation of valour; but various causes may animate it, weaken it, and even destroy it. A nation ought then to seek after and cultivate a virtue so useful; and a prudent sovereign will take all possible measures to inspire his subjects with it:—his wisdom will point out to him the means. It is this generous flame that animates the French nobility: fired with a love of glory and of their country, they fly to battle, and cheerfully spill their blood in the field of honour. To what an extent would they not carry their conquests, if that kingdom were surrounded by nations less warlike! The Briton, generous and intrepid, resembles a lion in combat; and in general, the nations of Europe surpass in bravery all the other people upon earth.

§181. Other military virtues.But valour alone is not always successful in war: constant success can only be obtained by an assemblage of all the military virtues. History shews us the importance of ability in the commanders, of military discipline, frugality, bodily strength, dexterity, and being inured to fatigue and labour. These are so many distinct branches which a nation ought carefully to cultivate. It was the assemblage of all these that raised so high the glory of the Romans, and rendered them the masters of the world. It were a mistake to suppose that valour alone produced those illustrious exploits of the ancient Swiss,—the victories of Morgarten, Sempach, Laupen, Morat, and many others. The Swiss not only fought with intrepidity: they studied the art of war,—they inured themselves to its toils, they accustomed themselves to the practice of all its manoeuvres,—and their very love of liberty made them submit to a discipline which could alone secure to them that treasure, and save their country. Their troops were no less celebrated for their discipline than their bravery. Mezeray, after having given an account of the behaviour of the Swiss at the battle of Dreux, adds these remarkable words: “in the opinion of all the officers of both sides who were present, the Swiss, in that battle, under every trial, against infantry and cavalry, against French and against Germans, gained the palm for military discipline, and acquired the reputation of being the best infantry in the world.”

§182. Riches.Finally, the wealth of a nation constitutes a considerable part of its power, especially in modern times, when war requires such immense expenses. It is not simply in the revenues of the sovereign, or the public treasure, that the riches of a nation consist: its opulence is also rated from the wealth of individuals. We commonly call a nation rich, when it contains a great number of citizens in easy and affluent circumstances. The wealth of private persons really increases the strength of the nation; since they are capable of contributing large sums towards supplying the necessities of the state, and that, in a case of extremity, the sovereign may even employ all the riches of his subjects in the defence, and for the safety of the state, in virtue of the supreme command with which he is invested, as we shall hereafter shew. The nation then ought to endeavour to acquire those public and private riches, that are of such use to it: and this is a new reason for encouraging a commerce with other nations, which is the source from whence they flow,—and a new motive for the sovereign to keep a watchful eye over the different branches of foreign trade carried on by his subjects, in order that he may preserve and protect the profitable branches, and cut off those that occasion the exportation of gold and silver.

§183. Public revenues, and taxes.It is requisite that the state should possess an income proportionate to its necessary expenditures. That income may be supplied by various means,—by lands reserved for that purpose, by contributions, taxes of different kinds, &c.—but of this subject we shall treat in another place.

§184. The nation ought not to increase its power by illegal means.We have here summed up the principal ingredients that constitute that strength which a nation ought to augment and improve.—Can it be necessary to add the observation, that this desirable object is not to be pursued by any other methods than such as are just and innocent? A laudable end is not sufficient to sanctify the means; for these ought to be in their own nature lawful. The law of nature cannot contradict itself: if it forbids an action as unjust or dishonest in its own nature, it can never permit it for any purpose whatever. And therefore in those cases where that object, in itself so valuable and so praiseworthy, cannot be attained without employing unlawful means, it ought to be considered as unattainable, and consequently be relinquished. Thus we shall shew, in treating of the just causes of war, that a nation is not allowed to attack another with a view to aggrandise itself by subduing and giving law to the latter. This is just the same as if a private person should attempt to enrich himself by seizing his neighbour’s property.

§185. Power is but relative.The power of a nation is relative, and ought to be measured by that of its neighbours, or of all the nations from whom it has any thing to fear. The state is sufficiently powerful, when it is capable of causing itself to be respected, and of repelling whoever would attack it. It may be placed in this happy situation, either by keeping up its own strength equal or even superior to that of its neighbours,—or by preventing their rising to a predominant and formidable power. But we cannot shew here, in what cases, and by what means, a state may justly set bounds to the power of another: it is necessary first to explain the duties of a nation towards others, in order to combine them afterwards with its duties towards itself. For the present we shall only observe that a nation, while it obeys the dictates of prudence and wise policy in this instance, ought never to lose sight of the maxims of justice.

CHAPTER XV

Of the Glory of a Nation.

§186. Advantages of glory.The glory of a nation is intimately connected with its power, and indeed forms a considerable part of it. It is this brilliant advantage that procures it the esteem of other nations, and renders it respectable to its neighbours. A nation whose reputation is well established,—especially one whose glory is illustrious,—is courted by all sovereigns: they desire its friendship, and are afraid of offending it. Its friends, and those who wish to become so, favour its enterprises, and those who envy its prosperity are afraid to shew their ill-will.

§187. Duty of the nation.It is then of great advantage to a nation to establish its reputation and glory: hence this becomes one of the most important of the duties it owes to itself. True glory consists in the favourable opinion of men of wisdom and discernment: How true glory is acquired.it is acquired by the virtues or good qualities of the head and the heart, and by great actions which are the fruits of those virtues. A nation may have a two-fold claim to it—first, by what it does in its national character, by the conduct of those who have the administration of its affairs, and are invested with its authority and government,—and, secondly, by the merit of the individuals of whom the nation is composed.

§188. Duty of the prince.A prince, a sovereign of whatever kind, being bound to exert every effort for the good of the nation, is doubtless obliged to extend its glory, as far as lies in his power. We have seen that his duty is to labour after the perfection of the state, and of the people who are subject to him: by that means he will make them merit a good reputation and glory. He ought always to have this object in view in every thing he undertakes, and in the use he makes of his power. Let him, in all his actions, display justice, moderation, and greatness of soul: and he will thus acquire for himself and his people a name respected by the universe, and not less useful than glorious. The glory of Henry IV. saved France: in the deplorable state in which he found affairs, his virtues gave animation to the loyal part of his subjects, and encouraged foreign nations to lend him their assistance, and to enter into an alliance with him against the ambitious Spaniards. In his circumstances, a weak prince of little estimation would have been abandoned by all the world; people would have been afraid of being involved in his ruin.

Besides the virtues which constitute the glory of princes as well as of private persons, there is a dignity and decorum that particularly belong to the supreme rank, and which a sovereign ought to observe with the greatest care. He cannot neglect them without degrading himself, and casting a stain upon the state. Every thing that emanates from the throne ought to bear the character of purity, nobleness, and greatness. What an idea do we conceive of a people, when we see their sovereign display in his public acts a meanness of sentiment, by which a private person would think himself disgraced! All the majesty of the nation resides in the person of the prince:—what then must become of it if he prostitutes it, or suffers it to be prostituted by those who speak and act in his name? The minister who puts into his master’s mouth a language unworthy of him, deserves to be turned out of office with every mark of ignominy.

§189. Duty of the citizens.The reputation of individuals is, by a common and natural mode of speaking and thinking, made to reflect on the whole nation. In general we attribute a virtue or a vice to a people, when that vice or that virtue is frequently observed among them. We say that a nation is warlike, when it produces a great number of brave warriors,—that it is learned, when there are many learned men among the citizens,—and that it excels in the arts, when it produces many able artists: on the other hand, we call it cowardly, lazy or stupid, when men of those characters are more numerous there than elsewhere. The citizens, being obliged to labour with all their might to promote the welfare and advantage of their country, not only owe to themselves the care of deserving a good reputation, but they also owe it to the nation, whose glory is so liable to be influenced by theirs. Bacon, Newton, Descartes, Leibnitz, and Bernouilli, have each done honour to his native country, and essentially benefited it by the glory he acquired. Great ministers, and great generals,—an Oxenstiern, a Turenne, a Marlborough, a Ruyter, —serve their country in a double capacity, both by their actions, and by their glory. On the other hand, the fear of reflecting a disgrace on his country will furnish the good citizen with a new motive for abstaining from every dishonourable action. And the prince ought not to suffer his subjects to give themselves up to vices capable of bringing infamy on the nation, or even of simply tarnishing the brightness of its glory:—he has a right to suppress and to punish scandalous enormities, which do a real injury to the state.

§190. Example of the Swiss.The example of the Swiss is very capable of shewing how advantageous glory may prove to a nation. The high reputation they have acquired for their valour, and which they still gloriously support, has preserved them in peace for above two centuries, and rendered all the powers of Europe desirous of their assistance. Louis XI. while dauphin, was witness of the prodigies of valour they performed at the battle of St. Jaques, near Basle, and he immediately formed the design of closely attaching to his interest so intrepid a nation. The twelve hundred gallant heroes, who on this occasion attacked an army of between fifty and sixty thousand veteran troops, first defeated the vanguard of the Armagnacs, which was eighteen thousand strong; afterwards rashly engaging the main body of the army, they perished almost to a man, without being able to complete their victory. But besides their terrifying the enemy, and preserving Switzerland from a ruinous invasion, they rendered her essential service by the glory they acquired for her arms. A reputation for an inviolable fidelity is no less advantageous to that nation; and they have at all times been jealous of preserving it. The canton of Zug punished with death that unworthy soldier who betrayed the confidence of the duke of Milan by discovering that prince to the French, when, to escape them, he had disguised himself in the habit of the Swiss and placed himself in their ranks as they were marching out of Novara.

§191. Attacking the glory of a nation is doing her an injury.Since the glory of a nation is a real and substantial advantage, she has a right to defend it, as well as her other advantages. He who attacks her glory does her an injury; and she has a right to exact of him, even by force of arms, a just reparation. We cannot then condemn those measures sometimes taken by sovereigns to support or avenge the dignity of their crown. They are equally just and necessary. If, when they do not proceed from too lofty pretensions, we attribute them to a vain pride, we only betray the grossest ignorance of the art of reigning, and despise one of the firmest supports of the greatness and safety of a state.

CHAPTER XVI

Of the Protection sought by a Nation, and its voluntary Submission to a foreign Power.

§192. Protection.When a nation is not capable of preserving herself from insult and oppression, she may procure the protection of a more powerful state. If she obtains this by only engaging to perform certain articles, as, to pay a tribute in return for the safety obtained,—to furnish her protector with troops,—and to embark in all his wars as a joint concern,—but still reserving to herself the right of administering her own government at pleasure,—it is a simple treaty of protection, that does not at all derogate from her sovereignty, and differs not from the ordinary treaties of alliance otherwise than as it creates a difference in the dignity of the contracting parties.

§193. Voluntary submission of one nation to another.But this matter is sometimes carried still farther: and although a nation is under an obligation to preserve with the utmost care the liberty and independence it inherits from nature,—yet, when it has not sufficient strength of itself, and feels itself unable to resist its enemies, it may lawfully subject itself to a more powerful nation on certain conditions agreed to by both parties: and the compact or treaty of submission will thenceforward be the measure and rule of the rights of each. For since the people who enter into subjection resign a right which naturally belongs to them, and transfer it to the other nation, they are perfectly at liberty to annex what conditions they please to this transfer; and the other party, by accepting their submission on this footing, engages to observe religiously all the clauses of the treaty.

§194. Several kinds of submission.This submission may be varied to infinity, according to the will of the contracting parties: it may either leave the inferior nation a part of the sovereignty, restraining it only in certain respects,—or it may totally abolish it, so that the superior nation shall become the sovereign of the other,—or, finally, the lesser nation may be incorporated with the greater, in order thenceforward to form with it but one and the same state: and then the citizens of the former will have the same privileges as those with whom they are united. The Roman history furnishes examples of each of these three kinds of submission,—1. the allies of the Roman people, such as the inhabitants of Latium were for a long time, who, in several respects, depended on Rome, but, in all others, were governed according to their own laws, and by their own magistrates;— 2. the countries reduced to Roman provinces, as Capua, whose inhabitants submitted absolutely to the Romans; —3. the nations to which Rome granted the freedom of the city. In after times the emperors granted that privilege to all the nations subject to the empire, and thus transformed all their subjects into citizens.

§195. Right of the citizens when the nation submits to a foreign power.In the case of a real subjection to a foreign power, the citizens who do not approve this change are not obliged to submit to it:—they ought to be allowed to sell their effects and retire elsewhere. For my having entered into a society does not oblige me to follow its fate, when it dissolves itself in order to submit to a foreign dominion. I submitted to the society as it then was, to live in that society as the member of a sovereign state, and not in another: I am bound to obey it, while it remains a political society: but when it divests itself of that quality in order to re-ceive its laws from another state, it breaks the bond of union between its members, and releases them from their obligations.

§196. These compacts annulled by the failure of protection.When a nation has placed itself under the protection of another that is more powerful, or has even entered into subjection to it with a view to receiving its protection,—if the latter does not effectually protect the other in case of need, it is manifest, that, by failing in its engagements, it loses all the rights it had acquired by the convention, and that the other, being disengaged from the obligation it had contracted, re-enters into the possession of all its rights, and recovers its independence, or its liberty. It is to be observed, that this takes place even in cases where the protector does not fail in his engagements through a want of good faith, but merely through inability. For the weaker nation having submitted only for the sake of obtaining protection,—if the other proves unable to fulfil that essential condition, the compact is dissolved;—the weaker resumes its right, and may, if it thinks proper, have recourse to a more effectual protection. Thus the dukes of Austria, who had acquired a right of protection, and in some sort a sovereignty over the city of Lucerne, being unwilling or unable to protect it effectually, that city concluded an alliance with the three first cantons; and the dukes having carried their complaint to the emperor, the inhabitants of Lucerne replied, “that they had used the natural right common to all men, by which every one is permitted to endeavour to procure his own safety when he is abandoned by those who are obliged to grant him assistance.”

§197. Or by the infidelity of the party protected.The law is the same with respect to both the contracting parties: if the party protected do not fulfil their engagements with fidelity, the protector is discharged from his; he may afterwards refuse his protection, and declare the treaty broken, in case the situation of his affairs renders such a step advisable.

§198. And by the encroachments of the protector.In virtue of the same principle which discharges one of the contracting parties when the other fails in his engagements, if the more powerful nation should assume a greater authority over the weaker one than the treaty of protection or submission allows, the latter may consider the treaty as broken, and provide for its safety according to its own discretion. If it were otherwise, the inferior nation would lose by a convention which it had only formed with a view to its safety; and if it were still bound by its engagements when its protector abuses them and openly violates his own, the treaty would, to the weaker party, prove a downright deception. However, as some people maintain, that, in this case, the inferior nation has only the right of resistance and of imploring foreign aid,—and particularly as the weak cannot take too many precautions against the powerful, who are skilful in colouring over their enterprises,—the safest way is to insert in this kind of treaty a clause declaring it null and void whenever the superior power shall arrogate to itself any rights not expressly granted by the treaty.

§199. How the right of the nation protected is lost by its silence.But if the nation that is protected, or that has placed itself in subjection on certain conditions, does not resist the encroachments of that power from which it has sought support,—if it makes no opposition to them,—if it preserves a profound silence, when it might and ought to speak,—its patient acquiescence becomes in length of time a tacit consent that legitimates the rights of the usurper. There would be no stability in the affairs of men, and especially in those of nations, if long possession, accompanied by the silence of the persons concerned, did not produce a degree of right. But it must be observed, that silence, in order to shew tacit consent, ought to be voluntary. If the inferior nation proves that violence and fear prevented its giving testimonies of its opposition, nothing can be concluded from its silence, which therefore gives no right to the usurper.

CHAPTER XVII

How a Nation may separate itself from the State of which it is a Member, or renounce its Allegiance to its Sovereign when it is not protected.

§200. Difference between the present case and those in the preceding chapter.We have said that an independent nation, which, without becoming a member of another state, has voluntarily rendered itself dependent on or subject to it in order to obtain protection, is released from its engagements as soon as that protection fails, even though the failure happen through the inability of the protector. But we are not to conclude that it is precisely the same case with every nation that cannot obtain speedy and effectual protection from its natural sovereign or the state of which it is a member. The two cases are very different. In the former, a free nation becomes subject to another state,—not to partake of all the other’s advantages, and form with it an absolute union of interests (for if the more powerful state were willing to confer so great a favour, the weaker one would be incorporated, not subjected),—but to obtain protection alone by the sacrifice of its liberty, without expecting any other return. When therefore the sole and indispensable condition of its subjection is (from what cause soever) not complied with, it is free from its engagements; and its duty towards itself obliges it to take fresh methods to provide for its own security. But the several members of one individual state, as they all equally participate in the advantages it procures, are bound uniformly to sup-port it: they have entered into mutual engagements to continue united with each other, and to have on all occasions but one common cause. If those who are menaced or attacked might separate themselves from the others in order to avoid a present danger, every state would soon be dismembered and destroyed. It is then essentially necessary for the safety of society, and even for the welfare of all its members, that each part should with all its might resist a common enemy, rather than separate from the others; and this is consequently one of the necessary conditions of the political association. The natural subjects of a prince are bound to him without any other reserve than the observation of the fundamental laws;—it is their duty to remain faithful to him, as it is his, on the other hand, to take care to govern them well: both parties have but one common interest; the people and the prince together constitute but one complete whole, one and the same society. It is then an essential and necessary condition of the political society, that the subjects remain united to their prince, as far as in their power.

§201. Duty of the members of a state, or subjects of a prince, who are in danger.When, therefore, a city or a province is threatened or actually attacked, it must not, for the sake of escaping the danger, separate itself from the state of which it is a member, or abandon its natural prince, even when the state or the prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts, in order to maintain itself in its present state. If it is overcome by force,—necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but that it may and even ought to prefer the former alternative? Modern usage is conformable to this decision:—a city submits to the enemy when it cannot expect safety from a vigorous resistance; it takes an oath of fidelity to him; and its sovereign lays the blame on fortune alone.

§202. Their right when they are abandoned.The state is obliged to defend and preserve all its members (§17); and the prince owes the same assistance to his subjects. If, therefore, the state or the prince refuses or neglects to succour a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The country of Zug, being attacked by the Swiss in 1352, sent for succour to the duke of Austria its sovereign; but that prince, being engaged in discourse concerning his hawks at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic confederacy. The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens who were supported by the neighbouring nobility and the house of Austria, it made application to the head of the empire: but Charles IV. who was then emperor, declared to its deputies that he could not defend it;—upon which, Zurich secured its safety by an alliance with the Swiss. The same reason has authorised the Swiss in general to separate themselves entirely from the empire, which never protected them in any emergency: they had not owned its authority for a long time before their independence was acknowledged by the emperor and the whole Germanic body, at the treaty of Westphalia.

CHAPTER XVIII

Of the Establishment of a Nation in a Country.

§203. Possession of a country by a nation.Hitherto we have considered the nation merely with respect to itself, without any regard to the country it possesses. Let us now see it established in a country, which becomes its own property and habitation. The earth belongs to mankind in general; destined by the creator to be their common habitation, and to supply them with food, they all possess a natural right to inhabit it, and to derive from it whatever is necessary for their subsistence, and suitable to their wants. But when the human race became extremely multiplied, the earth was no longer capable of furnishing spontaneously, and without culture, sufficient support for its inhabitants; neither could it have received proper cultivation from wandering tribes of men continuing to possess it in common. It therefore became necessary that those tribes should fix themselves somewhere, and appropriate to themselves portions of land, in order that they might, without being disturbed in their labour, or disappointed of the fruits of their industry, apply themselves to render those lands fertile, and thence derive their subsistence. Such must have been the origin of the rights of property and dominion: and it was a sufficient ground to justify their establishment. Since their introduction, the right which was common to all mankind is individually restricted to what each lawfully possesses. The country which a nation inhabits, whether that nation has emigrated thither in a body, or that the different families of which it consists were previously scattered over the country, and there uniting, formed themselves into a political society,—that country, I say, is the settlement of the nation, and it has a peculiar and exclusive right to it.

§204. Its right over the parts in its possession.This right comprehends two things: 1. The domain, by virtue of which the nation alone may use this country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it every advantage it is capable of yielding.—2. The empire, or the right of sovereign command, by which the nation directs and regulates at its pleasure every thing that passes in the country.

§205. Acquisition of the sovereignty in a vacant country.When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignty of it, at the same time with the domain. For since the nation is free and independent, it can have no intention, in settling in a country, to leave to others the right of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government, becomes the seat of its jurisdiction, and is called its territory.

§206. Another manner of acquiring the empire in a free country.If a number of free families, scattered over an independent country, come to unite for the purpose of forming a nation or state, they all together acquire the sovereignty over the whole country they inhabit; for they were previously in possession of the domain,—a proportional share of it belonging to each individual family: and since they are willing to form together a political society, and establish a public authority which every member of the society shall be bound to obey, it is evidently their intention to attribute to that public authority the right of command over the whole country.

§207. How a nation appropriates to itself a desert country.All mankind have an equal right to things that have not yet fallen into the possession of any one; and those things belong to the person who first takes possession of them. When therefore a nation finds a country uninhabited and without an owner, it may lawfully take possession of it: and after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation: and this title has been usually respected, provided it was soon after followed by a real possession.

§208. A question on this subject.But it is questioned whether a nation can, by the bare act of taking possession, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cultivate. It is not difficult to determine, that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will therefore not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In effect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monument to shew their having taken possession of them, they have paid as little regard to that empty ceremony, as to the regulation of the popes, who divided a great part of the world between the crowns of Castile and Portugal.

§209. Whether it be lawful to possess a part of a country inhabited only by a few wandering tribes.There is another celebrated question, to which the discovery of the new world has principally given rise. It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole? We have already observed (§81), in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had from the beginning resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not therefore deviate from the views of nature in confining the Indians within narrower limits. However, we cannot help praising the moderation of the English puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land of which they intended to take possession. This laudable example was followed by William Penn and the colony of quakers that he conducted to Pennsylvania.

§210. Colonies.When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother-country, naturally becomes a part of the state, equally with its ancient possessions. Whenever therefore the political laws, or treaties, make no distinction between them, every thing said of the territory of a nation, must also extend to its colonies.

CHAPTER XIX

Of our Native Country, and several Things that relate to it.

§211. What is our country.The whole of the countries possessed by a nation and subject to its laws, forms, as we have already said, its territory, and is the common country of all the individuals of the nation. We have been obliged to anticipate the definition of the term, native country (§122), because our subject led us to treat of the love of our country,—a virtue so excellent and so necessary in a state. Supposing then this definition already known, it remains that we should explain several things that have a relation to this subject, and answer the questions that naturally arise from it.

§212. Citizens and natives.The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.

§213. Inhabitants.The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state, while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society, without participating in all its advantages. Their children follow the condition of their fathers; and as the state has given to these the right of perpetual residence, their right passes to their posterity.

§214. Naturalisation.A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalisation. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens,—for example, that of holding public offices,—and where, consequently, he has the power of granting only an imperfect naturalisation. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalise a single person, without the concurrence of the nation represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.

§215. Children of citizens, born in a foreign country.It is asked, whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say “of itself,” for civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.

§216. Children born at sea.As to children born at sea, if they are born in those parts of it that are possessed by their nation, they are born in the country: if it is on the open sea, there is no reason to make a distinction between them and those who are born in the country; for, naturally, it is our extraction, not the place of our birth, that gives us rights: and if the children are born in a vessel belonging to the nation, they may be reputed born in its territories; for it is natural to consider the vessels of a nation as parts of its territory, especially when they sail upon a free sea, since the state retains its jurisdiction over those vessels. And as, according to the commonly received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dominion, all the children born in the vessels of a nation are considered as born in its territory. For the same reason, those born in a foreign vessel are reputed born in a foreign country, unless their birth took place in a port belonging to their own nation: for the port is more particularly a part of the territory; and the mother, though at that moment on board a foreign vessel, is not on that account out of the country. I suppose that she and her husband have not quitted their native country to settle elsewhere.

§217. Children born in the armies of the state, or in the house of its minister at a foreign court.For the same reasons also, children born out of the country in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.

§218. Settlement.Settlement is a fixed residence in any place with an intention of always staying there. A man does not then establish his settlement in any place, unless he makes sufficiently known his intention of fixing there, either tacitly, or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not transfer his settlement elsewhere. In this sense, a person who stops at a place upon business, even though he stay a long time, has only a simple habitation there, but has no settlement. Thus the envoy of a foreign prince has not his settlement at the court where he resides.

The natural or original settlement is that which we acquire by birth, in the place where our father has his; and we are considered as retaining it, till we have abandoned it, in order to chuse another. The acquired settlement (adscititium) is that where we settle by our own choice.

§219. Vagrants.Vagrants are people who have no settlement. Consequently those born of vagrant parents have no country, since a man’s country is the place where, at the time of his birth, his parents had their settlement (§122), or it is the state of which his father was then a member;—which comes to the same point: for to settle for ever in a nation, is to become a member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. We may, however, consider the country of a vagrant to be that of his child, while that vagrant is considered as not having absolutely renounced his natural or original settlement.

§220. Whether a person may quit his country.Many distinctions will be necessary in order to give a complete solution to the celebrated question, whether a man may quit his country or the society of which he is a member. 1. The children are bound by natural ties to the society in which they were born: they are under an obligation to shew themselves grateful for the protection it has afforded to their fathers, and are in a great measure indebted to it for their birth and education. They ought therefore to love it, as we have already shewn (§122),—to express a just gratitude to it, and requite its services as far as possible by serving it in turn. We have observed above (§212), that they have a right to enter into the society of which their fathers were members. But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth. If he does not find it advantageous to remain in it, he is at liberty to quit it on making it a compensation for what it has done in his favour, and preserving, as far as his new engagements will allow him, the sentiments of love and gratitude he owes it. A man’s obligations to his natural country may, however, change, lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good reason, in order to choose another, or has been banished from it deservedly or unjustly, in due form of law, or by violence.

2. As soon as the son of a citizen attains the age of manhood, and acts as a citizen, he tacitly assumes that character; his obligations, like those of others who expressly and formally enter into engagements with society, become stronger and more extensive: but the case is very different with respect to him of whom we have been speaking. When a society has not been formed for a determinate time, it is allowable to quit it, when that separation can take place without detriment to the society. A citizen may therefore quit the state of which he is a member, provided it be not in such a conjuncture when he cannot abandon it without doing it a visible injury. But we must here draw a distinction between what may in strict justice be done, and what is honourable and conformable to every duty,—in a word, between the internal and the external obligation. Every man has a right to quit his country, in order to settle in any other, when by that step he does not endanger the welfare of his country. But a good citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonourable advantage of our liberty, to quit our associates upon slight pretences, after having derived considerable advantages from them: and this is the case of every citizen with respect to his country.

3. As to those who have the cowardice to abandon their country in a time of danger, and seek to secure themselves instead of defending it,— they manifestly violate the social compact, by which all the contracting parties engaged to defend themselves in an united body, and in concert: they are infamous deserters whom the state has a right to punish severely.

§221. How a person may absent himself for a time.In a time of peace and tranquillity, when the country has no actual need of all her children, the very welfare of the state, and that of the citizens, requires that every individual be at liberty to travel on business, provided that he be always ready to return, whenever the public interest recalls him. It is not presumed that any man has bound himself to the society of which he is a member, by an engagement never to leave the country when the interest of his affairs requires it, and when he can absent himself without injury to his country.

§222. Variation of the political laws in this respect.The political laws of nations vary greatly in this respect. In some nations, it is at all times, except in case of actual war, allowed to every citizen to absent himself, and even to quit the country altogether, whenever he thinks proper, without alleging any reason for it. These must be obeyed.This liberty, contrary in its own nature to the welfare and safety of society, can no where be tolerated but in a country destitute of resources and incapable of supplying the wants of its inhabitants. In such a country there can only be an imperfect society; for civil society ought to be capable of enabling all its members to procure by their labour and industry all the necessaries of life:—unless it effects this, it has no right to require them to devote themselves entirely to it. In some other states, every citizen is left at liberty to travel abroad on business, but not to quit his country altogether, without the express permission of the sovereign. Finally, there are states where the rigour of the government will not permit any one whatsoever to go out of the country, without passports in form, which are even not granted without great difficulty. In all these cases it is necessary to conform to the laws, when they are made by a lawful authority. But in the last-mentioned case, the sovereign abuses his power, and reduces his subjects to an insupportable slavery, if he refuses them permission to travel for their own advantage, when he might grant it to them without inconvenience, and without danger to the state. Nay it will presently appear, that, on certain occasions, he cannot, under any pretext, detain persons who wish to quit the country with the intention of abandoning it for ever.

§223. Cases in which a citizen has a right to quit his country.There are cases in which a citizen has an absolute right to renounce his country, and abandon it entirely,—a right, founded on reasons derived from the very nature of the social compact.—1. If the citizen cannot procure subsistence in his own country, it is undoubtedly lawful for him to seek it elsewhere. For political or civil society being entered into only with a view of facilitating to each of its members the means of supporting himself, and of living in happiness and safety, it would be absurd to pretend that a member, whom it cannot furnish with such things as are most necessary, has not a right to leave it.

2. If the body of the society, or he who represents it, absolutely fail to discharge their obligations towards a citizen, the latter may withdraw himself. For if one of the contracting parties does not observe his engagements, the other is no longer bound to fulfil his; for the contract is reciprocal between the society and its members. It is on the same principle also that the society may expel a member who violates its laws.

3. If the major part of the nation, or the sovereign who represents it, attempt to enact laws relative to matters in which the social compact cannot oblige every citizen to submission, those who are averse to these laws have a right to quit the society, and go settle elsewhere. For instance, if the sovereign, or the greater part of the nation, will allow but one religion in the state, those who believe and profess another religion have a right to withdraw, and to take with them their families and effects. For they cannot be supposed to have subjected themselves to the authority of men, in affairs of conscience; and if the society suffers and is weakened by their departure, the blame must be imputed to the intolerant party: for it is they who fail in their observance of the social compact,— it is they who violate it, and force the others to a separation. We have elsewhere touched upon some other instances of this third case,—that of a popular state wishing to have a sovereign (§33),—and that of an independent nation taking the resolution to submit to a foreign power (§195).

§224. Emigrants.Those who quit their country for any lawful reason, with a design to settle elsewhere, are called emigrants, and take their families and property with them.

§225. Sources of their right.Their right to emigrate may arise from several sources. 1. In the cases we have just mentioned (§223), it is a natural right, which is certainly reserved to each individual in the very compact itself by which civil society was formed.

2. The liberty of emigration may, in certain cases, be secured to the citizens by a fundamental law of the state. The citizens of Neufchatel and Valangin in Switzerland may quit the country and carry off their effects at their own pleasure, without even paying any duties.

3. It may be voluntarily granted them by the sovereign.

4. Finally, this right may be derived from some treaty made with a foreign power, by which a sovereign has promised to leave full liberty to those of his subjects, who, for a certain reason, on account of religion for instance, desire to transplant themselves into the territories of that power. There are such treaties between the German princes, particularly for cases in which religion is concerned. In Switzerland likewise, a citizen of Bern who wishes to emigrate to Fribourg and there profess the religion of the place, and reciprocally a citizen of Fribourg who, for a similar reason, is desirous of removing to Bern, has a right to quit his native country, and carry off with him all his property.

It appears from several passages in history, particularly the history of Switzerland and the neighbouring countries, that the law of nations, established there by custom some ages back, did not permit a state to receive the subjects of another state into the number of its citizens. This vicious custom had no other foundation than the slavery to which the people were then reduced. A prince, a lord, ranked his subjects under the head of his private property: he calculated their number, as he did that of his flocks; and, to the disgrace of human nature, this strange abuse is not yet every where eradicated.

§226. If the sovereign infringes their right, he injures them.If the sovereign attempts to molest those who have a right to emigrate, he does them an injury; and the injured individuals may lawfully implore the protection of the power who is willing to receive them. Thus we have seen Frederic William, king of Prussia, grant his protection to the emigrant protestants of Saltzburgh.

§227. Supplicants.The name of supplicants is given to all fugitives who implore the protection of a sovereign against the nation or prince they have quitted. We cannot solidly establish what the law of nations determines with respect to them, until we have treated of the duties of one nation towards others.

§228. Exile and banishment.Finally, exile is another manner of leaving our country. An exile is a man driven from the place of his settlement, or constrained to quit it, but without a mark of infamy. Banishment is a similar expulsion, with a mark of infamy annexed. Both may be for a limited time, or for ever. If an exile or banished man had his settlement in his own country, he is exiled or banished from his country. It is however proper to observe that common usage applies also the terms, exile and banishment, to the expulsion of a foreigner who is driven from a country where he had no settlement, and to which he is, either for a limited time or for ever, prohibited to return.

As a man may be deprived of any right whatsoever by way of punishment,—exile, which deprives him of the right of dwelling in a certain place, may be inflicted as a punishment: banishment is always one; for a mark of infamy cannot be set on any one, but with the view of punishing him for a fault, either real or pretended.

When the society has excluded one of its members by a perpetual banishment, he is only banished from the lands of that society, and it cannot hinder him from living wherever else he pleases; for, after having driven him out, it can no longer claim any authority over him. The contrary, however, may take place by particular conventions between two or more states. Thus every member of the Helvetic confederacy may banish its own subjects out of the territories of Switzerland in general; and in this case the banished person will not be allowed to live in any of the cantons, or in the territories of their allies.

Exile is divided into voluntary and involuntary. It is voluntary, when a man quits his settlement, to escape some punish-ment, or to avoid some calamity,—and involuntary, when it is the effect of a superior order.

Sometimes a particular place is appointed, where the exiled person is to remain during his exile; or a certain space is particularised, which he is forbid to enter. These various circumstances and modifications depend on him who has the power of sending into exile.

§229. The exile and banished man have a right to live somewhere.A man, by being exiled or banished, does not forfeit the human character, nor consequently his right to dwell somewhere on earth. He derives this right from nature, or rather from its author, who has destined the earth for the habitation of mankind; and the introduction of property cannot have impaired the right which every man has to the use of such things as are absolutely necessary,—a right which he brings with him into the world at the moment of his birth.

§230. Nature of this right.But though this right is necessary and perfect in the general view of it, we must not forget that it is but imperfect with respect to each particular country. For, on the other hand, every nation has a right to refuse admitting a foreigner into her territory, when he cannot enter it without exposing the nation to evident danger, or doing her a manifest injury. What she owes to herself, the care of her own safety, gives her this right; and in virtue of her natural liberty, it belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner (Prelim. §16). He cannot then settle by a full right, and as he pleases, in the place he has chosen, but must ask permission of the chief of the place; and if it is refused, it is his duty to submit.

§231. Duty of nations towards them.However, as property could not be introduced to the prejudice of the right acquired by every human creature, of not being absolutely deprived of such things as are necessary,—no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country. But if particular and substantial reasons prevent her from affording him an asylum, this man has no longer any right to demand it,—because, in such a case, the country inhabited by the nation cannot, at the same time, serve for her own use, and that of this foreigner. Now, supposing even that things are still in common, nobody can arrogate to himself the use of a thing which actually serves to supply the wants of another. Thus a nation, whose lands are scarcely sufficient to supply the wants of the citizens, is not obliged to receive into its territories a company of fugitives or exiles. Thus it ought even absolutely to reject them, if they are infected with a contagious disease. Thus also it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens, that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, to follow, in this respect, the suggestions of prudence. But this prudence should be free from unnecessary suspicion and jealousy;—it should not be carried so far as to refuse a retreat to the unfortunate, for slight reasons, and on groundless and frivolous fears. The means of tempering it will be never to lose sight of that charity and commiseration which are due to the unhappy. We must not suppress those feelings even for those who have fallen into misfortune through their own fault. For we ought to hate the crime, but love the man, since all mankind ought to love each other.

§232. A nation cannot punish them for faults committed out of its territories,If an exile or banished man has been driven from his country for any crime, it does not belong to the nation in which he has taken refuge, to punish him for that fault committed in a foreign country. For nature does not give to men or to nations any right to inflict punishment, except for their own defence and safety (§169); whence it follows, that we cannot punish any but those by whom we have been injured.

§233. except such as affect the common safety of mankind.But this very reason shews, that, although the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories, we ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Poisoners, assassins, and incendiaries by profession, may be exterminated wherever they are seized; for they attack and injure all nations, by trampling under foot the foundations of their common safety. Thus pirates are sent to the gibbet by the first into whose hands they fall. If the sovereign of the country where crimes of that nature have been committed, reclaims the perpetrators of them in order to bring them to punishment, they ought to be surrendered to him, as being the person who is principally interested in punishing them in an exemplary manner. And as it is proper to have criminals regularly convicted by a trial in due form of law, this is a second reason for delivering up malefactors of that class to the states where their crimes have been committed.

CHAPTER XX

Of public, common, and private Property.

§234. What the Romans called res communes.Let us now see what is the nature of the different things contained in the country possessed by a nation, and endeavour to establish the general principles of the law by which they are regulated. This subject is treated by civilians under the title de rerum divisione. There are things which in their own nature cannot be possessed; there are others, of which nobody claims the property, and which remain common, as in their primitive state, when a nation takes possession of a country: the Roman lawyers called these things res communes, things common: such were, with them, the air, the running water, the sea, the fish, and wild beasts.

§235. Aggregate wealth of a nation, and its divisions.Every thing susceptible of property is considered as belonging to the nation that possesses the country, and as forming the aggre-gate mass of its wealth. But the nation does not possess all those things in the same manner. Those not divided between particular communities, or among the individuals of a nation, are called public property. Some are reserved for the necessities of the state, and form the demesne of the crown, or of the republic: others remain common to all the citizens, who take advantage of them, each according to his necessities, or according to the laws which regulate their use; and these are called common property.—There are others that belong to some body or community, termed joint property, res universitatis; and these are, with respect to this body in particular, what the public property is with respect to the whole nation. As the nation may be considered as a great community, we may indifferently give the name of common property to those things that belong to it in common, in such a manner that all the citizens may make use of them, and to those that are possessed in the same manner by a body or community: the same rules hold good with respect to both.—Finally, the property possessed by individuals is termed private property, res singulorum.

§236. Two ways of acquiring public property.When a nation in a body takes possession of a country, every thing that is not divided among its members remains common to the whole nation, and is called public property. There is a second way whereby a nation, and, in general, every community, may acquire possessions, viz. by the will of whosoever thinks proper to convey to it, under any title whatsoever, the domain or property of what he possesses.

§237. The revenues of the public property are naturally at the sovereign’s disposal.As soon as the nation commits the reins of government to the hands of a prince, it is considered as committing to him, at the same time, the means of governing. Since therefore the income of the public property, of the domain of the state, is destined for the expenses of government, it is naturally at the prince’s disposal, and ought always to be considered in this light, unless the nation has, in express terms, excepted it in conferring the supreme authority, and has provided in some other manner for its disposal, and for the necessary expenses of the state, and the support of the prince’s person and household. Whenever therefore the prince is purely and simply invested with the sovereign authority, it includes a full discretional power to dispose of the public revenues. The duty of the sovereign indeed obliges him to apply those revenues only to the necessities of the state; but he alone is to determine the proper application of them, and is not accountable for them to any person.

§238. The nation may grant him the use and property of its common possessions,The nation may invest the superior with the sole use of its common possessions, and thus add them to the domain of the state. It may even cede the property of them to him. But this cession of the use or property requires an express act of the proprietor, which is the nation. It is difficult to found it on a tacit consent, because fear too often hinders the subjects from protesting against the unjust encroachments of the sovereign.

§239. or allow him the domain, and reserve to itself the use of them.The people may even allow the superior the domain of the things they possess in common, and reserve to themselves the use of them in the whole or in part. Thus the domain of a river, for instance, may be ceded to the prince, while the people reserve to themselves the use of it for navigation, fishing, the watering of cattle, &c. They may also allow the prince the sole right of fishing, &c. in that river. In a word, the people may cede to the superior whatever right they please over the common possessions of the nation; but all those particular rights do not naturally and of themselves flow from the sovereignty.

§240. Taxes.If the income of the public property, or of the domain, is not sufficient for the public wants, the state supplies the deficiency by taxes. These ought to be regulated in such a manner, that all the citizens may pay their quota in proportion to their abilities, and the advantages they reap from the society. All the members of civil society being equally obliged to contribute, according to their abilities, to its advantage and safety,—they cannot refuse to furnish the subsidies necessary to its preservation, when they are demanded by lawful authority.

§241. The nation may reserve to itself the right of imposing them.Many nations have been unwilling to commit to the prince a trust of so delicate a nature, or to grant him a power that he may so easily abuse. In establishing a domain for the support of the sovereign and the ordinary expenses of the state, they have reserved to themselves the right of providing, by themselves or by their representatives, for extraordinary wants, in imposing taxes payable by all the inhabitants. In England, the king lays the necessities of the state before the parliament; that body, composed of the representatives of the nation, deliberates, and, with the concurrence of the king, determines the sum to be raised, and the manner of raising it. And of the use the king makes of the money thus raised, that same body oblige him to render them an account.

§242. Of the sovereign who has this power.In other states where the sovereign possesses the full and absolute authority, it is he alone that imposes taxes, regulates the manner of raising them, and makes use of them as he thinks proper, without giving an account to any body. The French king at present enjoys this authority, with the simple formality of causing his edicts to be registered by the parliament; and that body has a right to make humble remonstrances, if it sees any inconveniences attending the imposition ordered by the prince:—a wise establishment for causing truth and the cries of the people to reach the ears of the sovereign, and for setting some bounds to his extravagance, or to the avidity of the ministers and persons concerned in the revenue.

§243. Duties of the prince with respect to taxes.The prince who is invested with the power of taxing his people ought by no means to consider the money thus raised as his own property. He ought never to lose sight of the end for which this power was granted him: the nation was willing to enable him to provide, as it should seem best to his wisdom, for the necessities of the state. If he diverts this money to other uses,—if he consumes it in idle luxury, to gratify his pleasures, to satiate the avarice of his mistresses and favourites,—we hesitate not to declare to those sovereigns who are still capable of listening to the voice of truth, that such a one is not less guilty, nay, that he is a thousand times more so, than a private person who makes use of his neighbours’ property to gratify his irregular passions. Injustice, though screened from punishment, is not the less shameful.

§244.Eminent domain annexed to the sovereignty.Every thing in the political society ought to tend to the good of the community; and since even the persons of the citizens are subject to this rule, their property cannot be excepted. The state could not subsist, or constantly administer the public affairs in the most advantageous manner, if it had not a power to dispose occasionally of all kinds of property subject to its authority. It is even to be presumed, that, when the nation takes possession of a country, the property of certain things is given up to individuals only with this reserve. The right which belongs to the society, or to the sovereign, of disposing, in case of necessity and for the public safety, of all the wealth contained in the state, is called the eminent domain. It is evident that this right is, in certain cases, necessary to him who governs, and consequently is a part of the empire or sovereign power, and ought to be placed in the number of the prerogatives of majesty (§45). When therefore the people confer the empire on any one, they at the same time invest him with the eminent domain, unless it be expressly reserved. Every prince who is truly sovereign is invested with this right when the nation has not excepted it,—however limited his authority may be in other respects.

If the sovereign disposes of the public property in virtue of his eminent domain, the alienation is valid, as having been made with sufficient powers.

When, in a case of necessity, he disposes in like manner of the possessions of a community or an individual, the alienation will, for the same reason, be valid. But justice requires that this community or this individual be indemnified at the public charge: and if the treasury is not able to bear the expense, all the citizens are obliged to contribute to it; for the burthens of the state ought to be supported equally, or in a just proportion. The same rules are applicable to this case as to the loss of merchandise thrown overboard to save the vessel.

§245. Government of public property.Besides the eminent domain, the sovereignty gives a right of another nature over all public, common, and private property,—that is, the empire, or the right of command in all places of the country belonging to the nation. The supreme power extends to every thing that passes in the state, wherever it is transacted; and consequently the sovereign commands in all public places, on rivers, on highways, in deserts, &c. Every thing that happens there is subject to his authority.

§246. The superior may make laws with respect to the use of things possessed in common.In virtue of the same authority, the sovereign may make laws to regulate the manner in which common property is to be used,—as well the property of the nation at large, as that of distinct bodies or corporations. He cannot, indeed, take away their right from those who have a share in that property: but the care he ought to take of the public repose, and of the common advantage of the citizens, gives him doubtless a right to establish laws tending to this end, and consequently to regulate the manner in which things possessed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the state to prevent, and against which the prince is obliged to take just measures. Thus the sovereign may establish wise laws with respect to hunting and fishing,—forbid them in the seasons of propagation,—prohibit the use of certain nets, and of every destructive method, &c. But as it is only in the character of the common father, governor, and guardian of his people, that the sovereign has a right to make those laws, he ought never to lose sight of the ends which he is called upon to accomplish by enacting them: and if, upon those subjects, he makes any regulations with any other view than that of the public welfare, he abuses his power.

§247. Alienation of the property of a corporation.A corporation, as well as every other proprietor, has a right to alienate and mortgage its property: but the present members ought never to lose sight of the destination of that joint property, nor dispose of it otherwise than for the advantage of the body, or in cases of necessity. If they alienate it with any other view, they abuse their power, and transgress against the duty they owe to their own corporation and their posterity; and the prince, in quality of common father, has a right to oppose the measure. Besides, the interest of the state requires that the property of corporations be not squandered away;—which gives the prince, intrusted with the care of watching over the public safety, a new right to prevent the alienation of such property. It is then very proper to ordain in a state, that the alienation of the property of corporations should be invalid, without the consent of the superior powers. And indeed the civil law, in this respect, gives to corporations the rights of minors. But this is strictly no more than a civil law; and the opinion of those who make the law of nature alone a sufficient authority to take from a corporation the power of alienating their property without the consent of the sovereign, appears to me to be void of foundation, and contrary to the notion of property. A corporation, it is true, may have received property either from their predecessors, or from any other persons, with a clause that disables them from alienating it: but in this case they have only the perpetual use of it, not the entire and free property. If any of their property was solely given for the preservation of the body, it is evident that the corporation has not a right to alienate it, except in a case of extreme necessity:—and whatever property they may have received from the sovereign, is presumed to be of that nature.

§248. Use of common property.All the members of a corporation have an equal right to the use of its common property. But, respecting the manner of enjoying it, the body of the corporation may make such regulations as they think proper, provided that those regulations be not inconsistent with that equality which ought to be preserved in a communion of property. Thus a corporation may determine the use of a common forest or pasture, either allowing it to all the members according to their wants, or allotting to each an equal share; but they have not a right to exclude any one of the number, or to make a distinction to his disadvantage by assigning him a less share than that of the others.

§249. How each member is to enjoy it.All the members of a body having an equal right to its common property, each individual ought so to manage in taking advantage of it, as not in any wise to injure the common use. According to this rule, an individual is not permitted to construct upon any river that is public property, any work capable of rendering it less convenient for the use of every one else, as erecting mills, making a trench to turn the water upon his own lands, &c. If he attempts it, he arrogates to himself a private right, derogatory to the common right of the public.

§250. Right of anticipation in the use of it.The right of anticipation (jus praeventionis) ought to be faithfully observed in the use of common things which cannot be used by several persons at the same time. This name is given to the right which the first-comer acquires, to the use of things of this nature. For instance, if I am actually drawing water from a common or public well, another who comes after me cannot drive me away to draw out of it himself: and he ought to wait till I have done. For I make use of my right in drawing that water, and nobody can disturb me: a second, who has an equal right, cannot assert it to the prejudice of mine; to stop me by his arrival, would be arrogating to himself a better right than he allows me, and thereby violating the law of equality.

§251. The same right in another case.The same rule ought to be observed in regard to those common things which are consumed in using them. They belong to the person who first takes possession of them with the intention of applying them to his own use; and a second, who comes after, has no right to take them from him. I repair to a common forest, and begin to fell a tree: you come in afterwards, and would wish to have the same tree: you cannot take it from me; for this would be arrogating to yourself a right superior to mine, whereas our rights are equal. The rule in this case is the same as that which the law of nature prescribes in the use of the productions of the earth, before the introduction of property.

§252. Preservation and repairs of common possessions.The expenses necessary for the preservation or reparation of the things that belong to the public, or to a community, ought to be equally borne by all who have a share in them, whether the necessary sums be drawn from the common coffer, or that each individual contributes his quota. The nation, the corporation, and, in general, every collective body, may also establish extraordinary taxes, imposts, or annual contributions, to defray those 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. High-ways, bridges, and causeways, are things of a public nature, from which all who pass over them derive advantage: it is therefore just that all those passengers should contribute to their support.

§253. Duty and right of the sovereign in this respect.We shall see presently that the sovereign ought to provide for the preservation of the public property. He is no less obliged, as the conductor of the whole nation, to watch over the preservation of the property of a corporation. It is the interest of the state at large that a corporation should not fall into indigence, by the ill conduct of its members for the time being. And as every obligation generates the correspondent right which is necessary to discharge it, the sovereign has here a right to oblige the corporation to conform to their duty. If therefore he perceives, for instance, that they suffer their necessary buildings to fall to ruin, or that they destroy their forests, he has a right to prescribe what they ought to do, and to put his orders in force.

§254. Private property.We have but a few words to say with respect to private property: every proprietor has a right to make what use he pleases of his own substance, and to dispose of it as he pleases, when the rights of a third person are not involved in the business. The sovereign, however, as the father of his people, may and ought to set bounds to a prodigal, and to prevent his running to ruin, especially if this prodigal be the father of a family. But he must take care not to extend this right of inspection so far as to lay a restraint on his subjects in the administration of their affairs;— which would be no less injurious to the true welfare of the state than to the just liberty of the citizens. The particulars of this subject belong to public law and politics.

§255. The sovereign may subject it to regulations of police.It must also be observed, that individuals are not so perfectly free in the economy or government of their affairs, as not to be subject to the laws and regulations of police made by the sovereign. For instance, if vineyards are multiplied to too great an extent in a country which is in want of corn, the sovereign may forbid the planting of the vine in fields proper for tillage; for here the public welfare and the safety of the state are concerned. When a reason of such importance requires it, the sovereign or the magistrate may oblige an individual to sell all the provisions in his possession above what are necessary for the subsistence of his family, and may fix the price he shall receive for them. The public authority may and ought to hinder monopolies, and suppress all practices tending to raise the price of provisions,—to which practices the Romans applied the expressions annonam incendere, comprimere, vexare.

§256. Inheritances.Every man may naturally chuse the person to whom he would leave his property after his death, as long as his right is not limited by some indispensable obligation,—as, for instance, that of providing for the subsistence of his children. The children also have naturally a right to inherit their father’s property in equal portions. But this is no reason why particular laws may not be established in a state, with regard to testaments and inheritances,—a respect being however paid to the essential laws of nature. Thus, by a rule established in many places with a view to support noble families, the eldest son is, of right, his father’s principal heir. Lands, perpetually appropriated to the eldest male heir of a family, belong to him by virtue of another right, which has its source in the will of the person, who, being sole owner of those lands, has bequeathed them in that manner.

CHAPTER XXI

Of the Alienation of the public Property, or the Domain, and that of a Part of the State.

§257. The nation may alienate its public property.The nation being the sole mistress of the property in her possession, may dispose of it as she thinks proper, and may lawfully alienate or mortgage it. This right is a necessary consequence of the full and absolute domain: the exercise of it is restrained by the law of nature, only with respect to proprietors who have not the use of reason necessary for the management of their affairs; which is not the case with a nation. Those who think otherwise cannot allege any solid reason for their opinion; and it would follow from their principles, that no safe contract can be entered into with any nation;—a conclusion, which attacks the foundation of all public treaties.

§258. Duties of a nation in this respect.But it is very just to say that the nation ought carefully to preserve her public property,—to make a proper use of it,—not to dispose of it without good reasons, nor to alienate or mortgage it but for a manifest public advantage, or in case of a pressing necessity. This is an evident consequence of the duties a nation owes to herself. The public property is extremely useful and even necessary to the nation; and she cannot squander it improperly, without injuring herself, and shamefully neglecting the duty of self-preservation. I speak of the public property strictly so called, or the domain of the state. Alienating its revenues is cutting the sinews of government. As to the property common to all the citizens, the nation does an injury to those who derive advan-tage from it, if she alienates it without necessity, or without cogent reasons. She has a right to do this as proprietor of these possessions; but she ought not to dispose of them except in a manner that is consistent with the duties which the body owes to its members.

§259. Duties of the prince.The same duties lie on the prince, the director of the nation: he ought to watch over the preservation and prudent management of the public property,—to stop and prevent all waste of it,—and not suffer it to be applied to improper uses.

§260. He cannot alienate the public property.The prince, or the superior of the society, whatever he is, being naturally no more than the administrator, and not the proprietor of the state, his authority, as sovereign or head of the nation, does not of itself give him a right to alienate or mortgage the public property. The general rule then is, that the superior cannot dispose of the public property, as to its substance,—the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, the alienation he makes of it will be invalid, and may at any time be revoked by his successor, or by the nation. This is the law generally received in France; and it was upon this principle that the duke of Sully advised Henry IV. to resume the possession of all the domains of the crown alienated by his predecessors.

§261. The nation may give him a right to it.The nation having the free disposal of all the property belonging to her (§257), may convey her right to the sovereign, and consequently confer upon him that of alienating and mortgaging the public property. But this right not being necessary to the conductor of the state, to enable him to render the people happy by his government,—it is not to be presumed, that the nation have given it to him; and if they have not made an express law for that purpose, we are to conclude that the prince is not invested with it, unless he has received full, unlimited, and absolute authority.

§262. Rules on this subject with respect to treaties between nation and nation.The rules we have just established relate to alienations of public property in favour of individuals. The question assumes a different aspect when it relates to alienations made by one nation to another: it requires other principles to decide it in the different cases that may present themselves. Let us endeavour to give a general theory of them.

1. It is necessary that nations should be able to treat and contract validly with each other, since they would otherwise find it impossible to bring their affairs to an issue, or to obtain the blessings of peace with any degree of certainty. Whence it follows, that when a nation has ceded any part of its property to another, the cession ought to be deemed valid and irrevocable, as in fact it is, in virtue of the notion of property. This principle cannot be shaken by any fundamental law, by which a nation might pretend to deprive themselves of the power of alienating what belongs to them: for this would be depriving themselves of all power to form contracts with other nations, or attempting to deceive them. A nation with such a law ought never to treat concerning its property: if it is obliged to it by necessity, or determined to do it for its own advantage, the moment it broaches a treaty on the subject, it renounces its fundamental law. It is seldom disputed that an entire nation may alienate what belongs to itself: but it is asked, whether its conductor, its sovereign, has this power? The question may be determined by the fundamental laws. But if the laws say nothing directly on this subject, then we have recourse to our second principle, viz.

2. If the nation has conferred the full sovereignty on its conductor,— if it has intrusted to him the care, and, without reserve, given him the right, of treating and contracting with other states, it is considered as having invested him with all the powers necessary to make a valid contract. The prince is then the organ of the nation; what he does is considered as the act of the nation itself; and though he is not the owner of the public property, his alienations of it are valid, as being duly authorised.

§263. Alienation of a part of the state.The question becomes more difficult, when it relates, not to the alienation of some parts of the public property, but to the dismembering of the nation or state itself,—the cession of a town or a province that constitutes a part of it. This question however admits of a sound decision on the same principles. A nation ought to preserve itself (§16),—it ought to preserve all its members,—it cannot abandon them; and it is under an engagement to support them in their rank as members of the nation (§17). It has not then a right to traffic with their rank and liberty, on account of any advantages it may expect to derive from such a negotiation. They have joined the society for the purpose of being members of it:—they submit to the authority of the state, for the purpose of promoting in concert their common welfare and safety, and not of being at its disposal, like a farm or an herd of cattle. But the nation may lawfully abandon them in a case of extreme necessity; and she has a right to cut them off from the body, if the public safety requires it. When therefore, in such a case, the state gives up a town or a province to a neighbour or to a powerful enemy, the cession ought to remain valid as to the state, since she had a right to make it: nor can she any longer lay claim to the town or province thus alienated, since she has relinquished every right she could have over them.

§264. Rights of the dismembered party.But this province or town, thus abandoned and dismembered from the state, is not obliged to receive the new master whom the state attempts to set over it. Being separated from the society of which it was a member, it resumes all its original rights; and if it be capable of defending its liberty against the prince who would subject it to his authority, it may lawfully resist him. Francis I. having engaged by the treaty of Madrid to cede the duchy of Burgundy to the emperor Charles V. the states of that province declared, “that, having never been subject but to the crown of France, they would die subject to it; and that if the king abandoned them, they would take up arms, and endeavour to set themselves at liberty, rather than pass into a new state of subjection.” It is true, subjects are seldom able to make resistance on such occasions; and, in general, their wisest plan will be to submit to their new master, and endeavour to obtain the best terms they can.

§265. Whether the prince has power to dismember the state.Has the prince—or the superior, of whatever kind—a power to dismember the state?—We answer as we have done above with respect to the domain:—if the fundamental laws forbid all dismemberment by the sovereign, he cannot do it without the concurrence of the nation or its representatives. But if the laws are silent, and if the prince has received a full and absolute authority, he is then the depositary of the rights of the nation, and the organ by which it declares its will. The nation ought never to abandon its members but in a case of necessity, or with a view to the public safety, and to preserve itself from total ruin; and the prince ought not to give them up except for the same reasons. But since he has received an absolute authority, it belongs to him to judge of the necessity of the case, and of what the safety of the state requires.

On occasion of the above-mentioned treaty of Madrid, the principal persons in France, assembled at Cognac after the king’s return, unanimously resolved, “that his authority did not extend so far as to dismember the crown.” The treaty was declared void, as being contrary to the fundamental law of the kingdom: and indeed it had been concluded without sufficient powers: for as the laws in express terms refused to the king the power of dismembering the kingdom, the concurrence of the nation was necessary for that purpose; and it might give its consent by the medium of the states-general. Charles V. ought not to have released his prisoner before those very states had approved the treaty; or rather, making a more generous use of his victory, he should have imposed less rigorous conditions, such as Francis I. would have been able to comply with, and such as he could not, without dishonour, have refused to perform. But now that there are no longer any meetings of the states-general in France, the king remains the sole organ of the state, with respect to other powers: these latter have a right to take his will for that of all France; and the cessions the king might make them, would remain valid, in virtue of the tacit consent by which the nation has vested the king with unlimited powers to treat with them. Were it otherwise, no solid treaty could be entered into with the crown of France. For greater security, however, other powers have often required that their treaties should be registered in the parliament of Paris: but at present even this formality seems to be laid aside.

CHAPTER XXII

Of Rivers, Streams, and Lakes.

§266. A river that separates two territories.When a nation takes possession of a country with a view to settle there, it takes possession of every thing included in it, as lands, lakes, rivers, &c. But it may happen that the country is bounded and separated from another by a river;—in which case, it is asked, to whom this river belongs? It is manifest from the principles established in Chap. XVIII. that it ought to belong to the nation who first took possession of it. This principle cannot be denied; but the difficulty is, to make the application. It is not easy to determine which of the two neighbouring nations was the first to take possession of a river that separates them.—For the decision of such questions, the rules which may be 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 herself. Consequently, the nation that first established her dominion on one of the banks of the river, is considered as being the first possessor of all that part of the river which bounds her territory. When there is 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 the 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.

2. If that nation has made any use of the river, as for navigation or fishing, it is presumed with the greater certainty, that she has resolved to appropriate the river to her own use.

3. If, of two nations inhabiting the opposite banks of the river, neither party can prove that they themselves, or those whose rights they inherit, were the first settlers in those tracts, it is to be supposed that both nations came there at the same time, since neither of them can give any reason for claiming the preference: and in this case, the dominion of each will extend to the middle of the river.

4. A long and undisputed possession establishes the right of nations; otherwise there could be no peace, no stability between them: and notorious facts must be admitted to prove the possession. Thus, when, from time immemorial, a nation has without contradiction exercised the sovereignty upon a river which forms her boundary, nobody can dispute with that nation the supreme dominion over the river in question.

5. Finally, if treaties determine any thing on this question, they must be observed. To decide it by accurate and express stipulations, is the safest mode: and such is, in fact, the method taken by most powers at present.

§267. Of the bed of a river which is dried up or takes another course.If a river leaves its bed, whether it be dried up or takes its course elsewhere, the bed belongs to the owner of the river; for the bed is a part of the river; and he who had appropriated to himself the whole, had necessarily appropriated to himself all its parts.

§268. The right of alluvion.If a territory which terminates on a river has no other boundary than that river, it is one of those territories that have natural or indeterminate bounds (territoria arcifinia), and it enjoys the right of alluvion; that is to say,—every gradual increase of soil, every addition which the current of the river may make to its bank on that side, is an addition to that territory, stands in the same predicament with it, and belongs to the same owner. For if I take possession of a piece of land, declaring that I will have for its boundary the river which washes its side,—or if it is given to me upon that footing,—I thus acquire beforehand the right of alluvion; and consequently I alone may appropriate to myself whatever additions the current of the river may insensibly make to my land:—I say “insensibly,” because in the very uncommon case, called avulsion, when the violence of the stream separates a considerable part from one piece of land and joins it to another, but in such manner that it can still be identified, the property of the soil so removed naturally continues vested in its former owner. The civil laws have thus provided against and decided this case when it happens between individual and individual; they ought to unite equity with the welfare of the state, and the care of preventing litigations.

In case of doubt, every territory terminating on a river is presumed to have no other boundary than the river itself; because nothing is more natural than to take a river for a boundary, when a settlement is made; and wherever there is a doubt, that is always to be presumed, which is most natural and most probable.

§269. Whether alluvion produces any change in the right to a river.As soon as it is determined that a river constitutes the boundary-line between two territories, whether it remains common to the inhabitants on each of its banks, or whether each shares half of it,—or, finally, whether it belongs entirely to one of them,—their rights with respect to the river are in no wise changed by the alluvion. If therefore it happens that, by a natural effect of the current, one of the two territories receives an increase, while the river gradually encroaches on the opposite bank,— the river still remains the natural boundary of the two territories, and, notwithstanding the progressive changes in its course, each retains over it the same rights which it possessed before; so that, if, for instance, it be divided in the middle between the owners of the opposite banks, that middle, though it changes its place, will continue to be the line of separation between the two neighbours. The one loses, it is true, while the other gains: but nature alone produces this change: she destroys the land of the one, while she forms new land for the other. The case cannot be otherwise determined, since they have taken the river alone for their limits.

§270. What is the case when the river changes its bed.But if, instead of a gradual and progressive change of its bed, the river, by an accident merely natural, turns entirely out of its course, and runs into one of the two neighbouring states, the bed which it has abandoned becomes thenceforward their boundary, and remains the property of the former owner of the river (§267): the river itself is, as it were, anihilated in all that part, while it is reproduced in its new bed, and there belongs only to the state in which it flows.

This case is very different from that of a river which changes its course without going out of the same state. The latter, in its new course, continues to belong to its former owner, whether that owner be the state or any individual to whom the state has given it,—because rivers belong to the public, in whatever part of the country they flow. Of the bed which it has abandoned, a moiety accrues to the contiguous lands on each side, if they are lands that have natural boundaries with the right of alluvion. That bed (notwithstanding what we have said in §267) is no longer the property of the public, because of the right of alluvion vested in the owners of its banks, and because the public held possession of the bed, only on account of its containing a river. But if the adjacent lands have not natural boundaries, the public still retains the property of the bed. The new soil over which the river takes its course is lost to the proprietor, because all the rivers in the country belong to the public.

§271. Works tending to turn the current,It is not allowable to raise any works on the bank of a river, which have a tendency to turn its course, and to cast it upon the opposite bank: this would be promoting our own advantage at our neighbour’s expense. Each can only secure himself, and hinder the current from undermining and carrying away his land.

§272. or, in general, prejudicial to the rights of others.In general, no person ought to build on a river, any more than elsewhere, any work that is prejudicial to his neighbour’s rights. If a river belongs to one nation, and another has an incontestable right to navigate it, the former cannot erect upon it a dam or a mill which might render it unfit for navigation. The right which the owners of the river possess in this case is only that of a limited property; and, in the exercise of it, they are bound to respect the rights of others.

§273. Rules in relation to interfering rights.But when two different rights to the same thing happen to clash with each other, it is not always easy to determine which ought to yield to the other: the point cannot be satisfactorily decided, without attentively considering the nature of the rights, and their origin. For example, a river belongs to me, but you have a right to fish in it: and the question is, whether I may erect mills on my river, whereby the fishery will become more difficult and less advantageous? The nature of our rights seems to determine the question in the affirmative.—I, as proprietor, have an essential right over the river itself:—you have only a right to make use of it,—a right which is merely accessory, and dependent on mine: you have but a general right to fish as you can in my river, such as you happen to find it, and in whatever state I may think fit to possess it. I do not deprive you of your right by erecting my mills: it still exists in the general view of it; and if it becomes less useful to you, it is by accident, and because it is dependent on the exercise of mine.

The case is different with respect to the right of navigation, of which we have spoken. This right necessarily supposes that the river shall remain free and navigable, and therefore excludes every work that will entirely interrupt its navigation.

The antiquity and origin of the rights serve, no less than their nature, to determine the question. The more ancient right, if it be absolute, is to be exerted in its full extent, and the other only so far as it may be extended without prejudice to the former; for it could only be established on this footing, unless the possessor of the first right has expressly consented to its being limited.

In the same manner, rights ceded by the proprietor of any thing are considered as ceded without prejudice to the other rights that belong to him, and only so far as they are consistent with these latter, unless an express declaration, or the very nature of the right, determine it otherwise. If I have ceded to another the right of fishing in my river, it is manifest that I have ceded it without prejudice to my other rights, and that I remain free to build on that river such works as I think proper, even though they should injure the fishery, provided they do not altogether destroy it. A work of this latter kind, such as a dam that would hinder the fish from ascending it, could not be built but in a case of necessity, and on making, according to circumstances, an adequate compensation to the person who has a right to fish there.

§274. Lakes.What we have said of rivers and streams, may be easily applied to lakes. Every lake, entirely included in a country, belongs to the nation that is the proprietor of that country; for, in taking possession of a territory, a nation is considered as having appropriated to itself every thing included in it: and as it seldom happens that the property of a lake of any considerable extent falls to the share of individuals, it remains common to the nation. If this lake is situated between two states, it is presumed to be divided between them at the middle, while there is no title, no constant and manifest custom, to determine otherwise.

§275. Increase of a lake.What has been said of the right of alluvion in speaking of rivers, is also to be understood as applying to lakes. When a lake, which bounds a state, belongs entirely to it, every increase in the extent of that lake falls under the same predicament as the lake itself; but it is necessary that the increase should be insensible, as that of land in alluvion, and moreover that it be real, constant, and complete. To explain myself more fully,—1. I speak of insensible increase: this is the reverse of alluvion: the question here relates to the increase of a lake, as in the other case to an increase of soil. If this increase be not insensible,—if the lake, overflowing its banks, inundates a large tract of land, this new portion of the lake, this tract thus covered with water, still belongs to its former owner. Upon what principles can we found the acquisition of it in behalf of the owner of the lake? The space is very easily identified, though it has changed its nature: and it is too considerable to admit a presumption that the owner had no intention to preserve it to himself, notwithstanding the changes that might happen to it.

But, 2. If the lake insensibly undermines a part of the opposite territory, destroys it, and renders it impossible to be known, by fixing itself there, and adding it to its bed, that part of the territory is lost to its former owner; it no longer exists; and the whole of the lake thus increased still belongs to the same state as before.

3. If some of the lands bordering on the lake are only overflowed at high water, this transient accident cannot produce any change in their dependence. The reason why the soil, which the lake invades by little and little, belongs to the owner of the lake, and is lost to its former proprietor, is because the proprietor has no other boundary than the lake, nor any other marks than its banks, to ascertain how far his possessions extend. If the water advances insensibly, he loses; if it retires in like manner, he gains: such must have been the intention of the nations who have respectively appropriated to themselves the lake and the adjacent lands:—it can scarcely be supposed that they had any other intention. But a territory overflowed for a time, is not confounded with the rest of the lake: it can still be recognised; and the owner may still retain his right of property in it. Were it otherwise, a town overflowed by a lake would become subject to a different government during the inundation, and return to its former sovereign as soon as the waters were dried up.

4. For the same reasons, if the waters of the lake, penetrating by an opening into the neighbouring country, there form a bay, or new lake, joined to the first by a canal,—this new body of water, and the canal, belong to the owner of the country in which they are formed. For the boundaries are easily ascertained: and we are not to presume an intention of relinquishing so considerable a tract of land in case of its happening to be invaded by the waters of an adjoining lake.

It must be observed that we here treat the question as arising between two states: it is to be decided by other principles when it relates to proprietors who are members of the same state. In the latter case, it is not merely the bounds of the soil, but also its nature and use, that determine the possession of it. An individual, who possesses a field on the borders of a lake, cannot enjoy it as a field when it is overflowed; and a person who has, for instance, the right of fishing in the lake, may exert his right in this new extent: if the waters retire, the field is restored to the use of its former owner. If the lake penetrates by an opening into the low lands in its neighbourhood, and there forms a permanent inundation, this new lake belongs to the public, because all lakes belong to the public.

§276. Land formed on the banks of a lake.The same principles shew, that if the lake insensibly forms an accession of land on its banks, either by retiring or in any other manner, this increase of land belongs to the country which it joins, when that country has no other boundary than the lake. It is the same thing as alluvion on the banks of a river.

§277. Bed of a lake dried up.But if the lake happened to be suddenly dried up, either totally or in a great part of it, the bed would remain in the possession of the sovereign of the lake; the nature of the soil, so easily known, sufficiently marking out the limits.

§278. Jurisdiction over lakes and rivers.The empire or jurisdiction over lakes and rivers is subject to the same rules as the property of them, in all the cases which we have examined. Each state naturally possesses it over the whole or the part, of which it possesses the domain. We have seen (§245) that the nation, or its sovereign, commands in all places in its possession.

CHAPTER XXIII

Of the Sea.

§279. The sea and its use.In order to complete the exposition of the principles of the law of nations with respect to the things a nation may possess, it remains to treat of the open sea. The use of the open sea consists in navigation, and in fishing; along its coasts it is moreover of use for the procuring of several things found near the shore, such as shell-fish, amber, pearls, &c. for the making of salt, and, finally, for the establishment of places of retreat and security for vessels.

§280. Whether the sea can be possessed, and its dominion appropriated.The open sea is not of such a nature as to admit the holding possession of it, since no settlement can be formed on it, so as to hinder others from passing. But a nation powerful at sea may forbid others to fish in it and to navigate it, declaring that she appropriates to herself the dominion over it, and that she will destroy the vessels that shall dare to appear in it without her permission. Let us see whether she has right to do this.

§281. Nobody has a right to appropriate to himself the use of the open sea.It is manifest that the use of the open sea, which consists in navigation and fishing, is innocent and inexhaustible; that is to say—he who navigates or fishes in the open sea, does no injury to any one, and the sea, in these two respects, is sufficient for all mankind. Now nature does not give to man a right of appropriating to himself things that may be innocently used, and that are inexhaustible, and sufficient for all. For since those things, while common to all, are sufficient to supply the wants of each,— whoever should, to the exclusion of all other participants, attempt to render himself sole proprietor of them, would unreasonably wrest the bounteous gifts of nature from the parties excluded. The earth no longer furnishing without culture the things necessary or useful to the human race, who were extremely multiplied, it became necessary to introduce the right of property, in order that each might apply himself with more success to the cultivation of what had fallen to his share, and multiply by his labour the necessaries and conveniences of life. It is for this reason the law of nature approves the rights of dominion and property, which put an end to the primitive manner of living in common. But this reason cannot apply to things which are in themselves inexhaustible; and consequently it cannot furnish any just grounds for seizing the exclusive possession of them. If the free and common use of a thing of this nature was prejudicial or dangerous to a nation, the care of their own safety would authorise them to reduce that thing under their own dominion if possible, in order to restrict the use of it by such precautions as prudence might dictate to them. But this is not the case with the open sea, on which people may sail and fish without the least prejudice to any person whatsoever, and without putting any one in danger. No nation therefore has a right to take possession of the open sea, or claim the sole use of it, to the exclusion of other nations. The kings of Portugal formerly arrogated to themselves the empire of the seas of Guinea and the East-Indies; but the other maritime powers gave themselves little trouble about such a pretension.

§282. The nation that attempts to exclude another, does it an injury.The right of navigating and fishing in the open sea being then a right common to all men, the nation that attempts to exclude another from that advantage, does her an injury, and furnishes her with sufficient grounds for commencing hostilities, since nature authorises a nation to repel an injury,—that is, to make use of force against whoever would deprive her of her rights.

§283. It even does an injury to all nations.Nay more,—a nation, which, without a legitimate claim, would arrogate to itself an exclusive right to the sea, and support its pretensions by force, does an injury to all nations; it infringes their common right; and they are justifiable in forming a general combination against it, in order to repress such an attempt. Nations have the greatest interest in causing the law of nations, which is the basis of their tranquillity, to be universally respected. If any one openly tramples it under foot, they all may and ought to rise up against him; and, by uniting their forces to chastise the common enemy, they will discharge their duty towards themselves, and towards human society, of which they are members (Prelim. §22).

§284. It may acquire an exclusive right by treaties,However, as every one is at liberty to renounce his right, a nation may acquire exclusive rights of navigation and fishing, by treaties, in which other nations renounce, in its favour, the rights they derive from nature. The latter are obliged to observe their treaties; and the nation they have favoured has a right to maintain by force the possession of its advantages. Thus the house of Austria has renounced, in favour of England and Holland, the right of sending vessels from the Netherlands to the East-Indies. In Grotius, de Jure Belli & Pacis, Lib. II. Cap. III. §15, may be found many instances of similar treaties.

§285. but not by prescription and long use,As the rights of navigation and of fishing, and other rights which may be exercised on the sea, belong to the class of those rights of mere ability (jura merae facultatis) which are imprescriptible (§95),—they cannot be lost for want of use. Consequently, although a nation should happen to have been, from time immemorial, in sole possession of the navigation or fishery in certain seas, it cannot, on this foundation, claim an exclusive right to those advantages. For though others have not made use of their common right to navigation and fishery in those seas, it does not thence follow that they have had any intention to renounce it; and they are entitled to exert it whenever they think proper.

§286. unless by virtue of a tacit agreement.But it may happen, that the non-usage of the right may assume the nature of a consent or tacit agreement, and thus become a title in favour of one nation against another. When a nation, that is in possession of the navigation and fishery in certain tracts of sea, claims an exclusive right to them, and forbids all participation on the part of other nations,—if the others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right, in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use.

§287. The sea near the coasts may become a property.The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, &c. Now in all these respects its use is not inexhaustible; wherefore the nation to whom the coasts belong may appropriate to themselves, and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit. Who can doubt, that the pearl fisheries of Bahrem and Ceylon may lawfully become property? And though, where the catching of fish is the only object, the fishery appears less liable to be exhausted,—yet if a nation have on their coast a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature, as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive in case there be a sufficient abundance of fish to furnish the neighbouring nations? But if, so far from taking possession of it, the nation has once acknowledged the common right of other nations to come and fish there, it can no longer exclude them from it; it has left that fishery in its primitive freedom, at least with respect to those who have been accustomed to take advantage of it. The English not having originally taken exclusive possession of the herring-fishery on their coasts, it is become common to them with other nations.

§288. Another reason for appropriating the sea bordering on the coasts.A nation may appropriate to herself those things, of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts, as far as they are able to protect their right. It is of considerable importance to the safety and welfare of the state, that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation. During the war between Spain and the United Provinces, James I. king of England, marked out, along his coasts, certain boundaries within which he declared that he would not suffer any of the powers at war to pursue their enemies, nor even allow their armed vessels to stop and observe the ships that should enter or sail out of the ports. These parts of the sea, thus subject to a nation, are comprehended in her territory; nor must any one navigate them without her consent. But to vessels that are not liable to suspicion, she cannot, without a breach of duty, refuse permission to approach for harmless purposes, since it is a duty incumbent on every proprietor to allow to strangers a free passage, even by land, when it may be done without damage or danger. It is true, that the state itself is sole judge of what is proper to be done in every particular case that occurs: and if it judges amiss, it is to blame; but the others are bound to submit. It is otherwise, however, in cases of necessity,—as, for instance, when a vessel is obliged to enter a road which belongs to you, in order to shelter herself from a tempest. In this case, the right of entering wherever we can, provided we cause no damage, or that we repair any damage done, is, as we shall shew more at large, a remnant of the primitive freedom, of which no man can be supposed to have divested himself; and the vessel may lawfully enter in spite of you, if you unjustly refuse her permission.

§289. How far this possession may extend.It is not easy to determine to what distance a nation may extend its rights over the sea by which it is surrounded. Bodinus pretends, that, according to the common right of all maritime nations, the prince’s dominion extends to the distance of thirty leagues from the coast. But this exact determination can only be founded on a general consent of nations, which it would be difficult to prove. Each state may, on this head, make what regulations it pleases, so far as respects the transactions of the citizens with each other, or their concerns with the sovereign: but between nation and nation, all that can reasonably be said, is, that, in general, the dominion of the state over the neigbouring sea extends as far as her safety renders it necessary and her power is able to assert it; since, on the one hand, she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she has need of it for some lawful end (§281), and, on the other, it would be a vain and ridiculous pre-tension to claim a right which she were wholly unable to assert. The fleets of England have given room to her kings to claim the empire of the seas which surround that island, even as far as the opposite coasts. Selden relates a solemn act by which it appears that, in the time of Edward I. that empire was acknowledged by the greatest part of the maritime nations of Europe; and the republic of the United Provinces acknowledged it, in some measure, by the treaty of Breda in 1667, at least so far as related to the honours of the flag. But solidly to establish a right of such extent, it were necessary to prove very clearly the express or tacit consent of all the powers concerned. The French have never agreed to this pretension of England; and in that very treaty of Breda, just mentioned, Louis XIV. would not even suffer the Channel to be called the English Channel, or the British Sea. The republic of Venice claims the empire of the Adriatic; and every body knows the ceremony annually performed upon that account. In confirmation of this right, we are referred to the examples of Uladislaus, king of Naples, of the emperor Frederic III. and of some of the kings of Hungary, who asked permission of the Venetians for their vessels to pass through that sea. That the empire of the Adriatic belongs to the republic to a certain distance from her own coasts, in the places of which she can keep possession, and of which the possession is important to her own safety,—appears to me incontestable: but I doubt very much whether any power is at present disposed to acknowledge her sovereignty over the whole Adriatic sea. Such pretensions to empire are respected as long as the nation that makes them is able to assert them by force; but they vanish of course on the decline of her power. At present the whole space of the sea within cannon-shot of the coast is considered as making a part of the territory; and for that reason a vessel taken under the cannon of a neutral fortress is not a lawful prize.

§290. Shores and ports.The shores of the sea incontestably belong to the nation that possesses the country of which they are a part; and they belong to the class of public things. If civilians have set them down as things common to all mankind (res communes), it is only in regard to their use; and we are not thence to conclude that they considered them as independent of the empire: the very contrary appears from a great number of laws. Ports and harbours are manifestly an appendage to and even a part of the country, and consequently are the property of the nation. Whatever is said of the land itself, will equally apply to them, so far as respects the consequences of the domain and of the empire.

§291. Bays and straits.All we have said of the parts of the sea near the coast, may be said more particularly, and with much greater reason, of roads, bays, and straits, as still more capable of being possessed, and of greater importance to the safety of the country. But I speak of bays and straits of small extent, and not of those great tracts of sea to which these names are sometimes given, as Hudson’s Bay and the Straits of Magellan, over which the empire cannot extend, and still less a right of property. A bay whose entrance can be defended, may be possessed and rendered subject to the laws of the sovereign; and it is of importance that it should be so, since the country might be much more easily insulted in such a place, than on a coast that lies exposed to the winds and the impetuosity of the waves.

§292. Straits in particular.It must be remarked with regard to straits, that, when they serve for a communication between two seas, the navigation of which is common to all or several nations, the nation which possesses the strait, cannot refuse the others a passage through it, provided that passage be innocent, and attended with no danger to herself. By refusing it without just reasons, she would deprive those nations of an advantage granted them by nature; and indeed the right to such a passage is a remnant of the primitive liberty enjoyed by all mankind. Nothing but the care of his own safety can authorise the owner of the strait to make use of certain precautions, and to require certain formalities, commonly established by the custom of nations. He has a right to levy a moderate tax on the vessels that pass, partly on account of the inconvenience they give him by obliging him to be on his guard,—partly as a return for the safety he procures them by protecting them from their enemies, by keeping pirates at a distance, and by defraying the expense attendant on the support of light-houses, sea-marks, and other things necessary to the safety of mariners. Thus the king of Denmark requires a custom at the straits of the Sound. Such right ought to be founded on the same reasons, and subject to the same rules, as the tolls established on land or on a river. (See §§103 and 104.)

§293. Right to wrecks.It is necessary to mention the right to wrecks,—a right which was the wretched offspring of barbarism, and which has almost every-where fortunately disappeared with its parent. Justice and humanity cannot allow of it except in those cases only where the proprietors of the effects saved from a wreck cannot possibly be discovered. In such cases, those effects belong to the person who is the first to take possession of them, or to the sovereign, if the law reserves them for him.

§294. A sea inclosed within the territories of a nation.If a sea is entirely inclosed by the territories of a nation, and has no other communication with the ocean than by a channel of which that nation may take possession, it appears that such a sea is no less capable of being occupied, and becoming property, than the land; and it ought to follow the fate of the country that surrounds it. The Mediterranean, in former times, was absolutely inclosed within the territories of the Romans; and that people, by rendering themselves masters of the strait which joins it to the ocean, might subject the Mediterranean to their empire, and assume the dominion over it. They did not, by such procedure, injure the rights of other nations; a particular sea being mani-festly designed by nature for the use of the countries and nations that surround it. Besides, by barring the entrance of the Mediterranean against all suspected vessels, the Romans, by one single stroke, secured the immense extent of their coasts: and this reason was sufficient to authorise them to take possession of it. And as it had absolutely no communication but with the states which belonged to them, they were at liberty to permit or prohibit the entrance into it, in the same manner as into any of their towns or provinces.

§295. The parts of the sea possessed by a power are within its jurisdiction.When a nation takes possession of certain parts of the sea, it takes possession of the empire over them, as well as of the domain, on the same principle which we advanced in treating of the land (§205). These parts of the sea are within the jurisdiction of the nation, and a part of its territory: the sovereign commands there; he makes laws, and may punish those who violate them: in a word, he has the same rights there as on land, and, in general, every right which the laws of the state allow him.

It is however true that the empire, and the domain or property, are not inseparable in their own nature, even in a sovereign state. As a nation may possess the domain or property of a tract of land or sea without having the sovereignty of it, so it may likewise happen that she shall possess the sovereignty of a place, of which the property or the domain, with respect to use, belongs to some other nation. But it is always presumed, that when a nation possesses the useful domain of any place whatsoever, she has also the higher domain and empire, or the sovereignty (§205). We cannot, however, from the possession of the empire, infer with equal probability a co-existent possession of the useful domain; for a nation may have good reasons for claiming the empire over a country, and particularly over a tract of sea, without pretending to have any property in it, or any useful domain. The English have never claimed the property of all the seas over which they have claimed the empire.

This is all we have to say in this first book. A more minute detail of the duties and rights of a nation, considered in herself would lead us too far. Such detail must, as we have already observed, be sought for in particular treatises on the public and political law. We are very far from flattering ourselves that we have omitted no important article: this is a slight sketch of an immense picture: but an intelligent reader will without difficulty supply all our omissions by making a proper application of the general principles: we have taken the utmost care solidly to establish those principles, and to develop them with precision and perspicuity.

BOOK II

Of a Nation considered in its Relations to others

CHAPTER I

Of the Common Duties of a Nation towards others, or of the Offices of Humanity between Nations.

§1. Foundation of the common and mutual duties of nations.The following maxims will appear very strange to cabinet politicians: and such is the misfortune of mankind, that, to many of those refined conductors of nations, the doctrine of this chapter will be a subject of ridicule. Be it so!—but we will nevertheless boldly lay down what the law of nature prescribes to nations. Shall we be intimidated by ridicule, when we speak after Cicero? That great man held the reins of the most powerful state that ever existed; and in that station he appeared no less eminent than at the bar. The punctual observance of the law of nature he considered as the most salutary policy to the state. In my preface, I have already quoted this fine passage: Nihil est quod adhuc de republica putem dictum, & quo possim longius progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuria non posse, sed hoc verissimum, sinesumma justitia rempublicam regi non posse. I might say on good grounds, that, by the words, summa justitia, Cicero means that universal justice which consists in completely fulfilling the law of nature. But in another place he explains himself more clearly on this head, and gives us sufficiently to understand that he does not confine the mutual duties of men to the observance of justice, properly so called. “Nothing,” says he, “is more agreeable to nature, more capable of affording true satisfaction, than, in imitation of Hercules, to undertake even the most arduous and painful labours for the benefit and preservation of all nations.” Magis est secundum naturam, pro omnibus gentibus, si fieri possit, conservandis aut juvandis, maximos labores molestiasque suscipere, imitantem Herculem illum, quem hominum fama, beneficiorum memor, in concilium coelestium collocavit, quam vivere in solitudine, non modo sine ullis molestiis, sed etiam in maximis voluptatibus, abundantem omnibus copiis, ut excellas etiam pulchritudine & viribus. Quocirca optimo quisque & splendidissimo ingenio longe illam vitam huic anteponit. In the same chapter, Cicero expressly refutes those who are for excluding foreigners from the benefit of those duties to which they acknowledge themselves bound towards their fellow citizens. Qui autem civium rationem dicunt habendam, externorum negant, hi dirimunt communem humani generis societatem; qua sublata, beneficentia, liberalitas, bonitas, justitia, funditus tollitur: quae qui tollunt, etiam adversus Deos immortales impii judicandi sunt; ab iis enim constitutam inter homines societatem evertunt.

And why should we not hope still to find, among those who are at the head of affairs, some wise individuals, who are convinced of this great truth, that virtue is, even for sovereigns and political bodies, the most certain road to prosperity and happiness? There is at least one benefit to be expected from the open assertion and publication of sound maxims, which is, that even those who relish them the least, are thereby laid under a necessity of keeping within some bounds, lest they should forfeit their characters altogether. To flatter ourselves with the vain expectation that men, and especially men in power, will be inclined strictly to conform to the laws of nature, would be a gross mistake; and to renounce all hope of making impression on some of them, would be to give up mankind for lost.

Nations being obliged by nature reciprocally to cultivate human society (Prelim. §11), are bound to observe towards each other all the duties which the safety and advantage of that society require.

§2. Offices of humanity, and their foundation.The offices of humanity are those succours, those duties, which men owe to each other, as men, that is, as social beings formed to live in society, and standing in need of mutual assistance for their preservation and happiness, and to enable them to live in a manner conformable to their nature. Now the laws of nature being no less obligatory on nations than on individuals (Prelim. §5), whatever duties each man owes to other men, the same does each nation, in its way, owe to other nations (Prelim. §10, &c.). Such is the foundation of those common duties,—of those offices of humanity,—to which nations are reciprocally bound towards each other. They consist, generally, in do-ing every thing in our power for the preservation and happiness of others, as far as such conduct is reconcilable with our duties towards ourselves.

§3. General principle of all the mutual duties of nations.The nature and essence of man—who, without the assistance of his fellow men, is unable to supply all his wants, to preserve himself, to render himself perfect, and to live happily—plainly shews us that he is destined to live in society, in the interchange of mutual aid,—and, consequently, that all men are, by their very nature and essence, obliged to unite their common efforts for the perfection of their own being and that of their condition. The surest method of succeeding in this pursuit is, that each individual should exert his efforts, first for himself, and then for others. Hence it follows that whatever we owe to ourselves, we like-wise owe to others, so far as they stand in need of assistance, and we can grant it to them without being wanting to ourselves. Since then one nation, in its way, owes to another nation every duty that one man owes to another man, we may confidently lay down this general principle:—One state owes to another state whatever it owes to itself, so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself. Such is the eternal and immutable law of nature. Those who might be alarmed at this doctrine, as totally subversive of the maxims of sound policy, will be relieved from their apprehensions by the two following considerations—

1. Social bodies or sovereign states are much more capable of supplying all their wants than individual men are; and mutual assistance is not so necessary among them, nor so frequently required. Now, in those particulars which a nation can itself perform, no succour is due to it from others.

2. The duties of a nation towards itself, and chiefly the care of its own safety, require much more circumspection and reserve, than need be observed by an individual in giving assistance to others. This remark we shall soon illustrate.

§4. Duties of a nation for the preservation of others.Of all the duties of a nation towards itself the chief object is its preservation and perfection, together with that of its state. The detail given of them in the first book of this work may serve to point out the several objects in relation to which a state may and should assist another state. Every nation ought, on occasion, to labour for the preservation of others, and for securing them from ruin and destruction, as far as it can do this, without exposing itself too much. Thus, when a neighbouring nation is unjustly attacked by a powerful enemy who threatens to oppress it,—if you can defend it without exposing yourself to great danger, unquestionably it is your duty to do so. Let it not be said, in objection to this, that a sovereign is not to expose the lives of his soldiers, for the safety of a foreign nation with which he has not contracted a defensive alliance. It may be his own case to stand in need of assistance; and consequently he is acting for the safety of his own nation, in giving energy to the spirit and disposition to afford mutual aid. Accordingly, policy here coincides with and enforces obligation and duty. It is the interest of princes to stop the progress of an ambitious monarch who aims at aggrandising himself by subjugating his neighbours. A powerful league was formed in favour of the United Provinces, when threatened with the yoke of Lewis XIV. When the Turks laid siege to Vienna, the brave Sobieski king of Poland saved the house of Austria, and possibly all Germany, and his own kingdom.

§5. It ought to assist a nation afflicted with famine or any other calamities.For the same reason, if a nation is afflicted with famine, all those who have provisions to spare ought to relieve her distress, without however exposing themselves to want. But if that nation is able to pay for the provisions thus furnished, it is perfectly lawful to sell them to her at a reasonable rate; for they are not bound to furnish her with what she is herself capable of procuring; and consequently there is no obligation of gratuitously bestowing on her such things as she is able to purchase. To give assistance in such extreme necessity is so essentially conformable to humanity, that the duty is seldom neglected by any nation that has received the slightest polish of civilisation. The great Henry the Fourth could not forbear to comply with it in favour of obstinate rebels who were bent on his destruction. .

Whatever be the calamity with which a nation is afflicted, the like assistance is due to it. We have seen little states in Switzerland order public collections to be made in behalf of towns or villages of the neighbouring countries, which had been ruined by fire, and remit them liberal succours; the difference of religion proving no bar to the performance of so humane a deed. The calamities of Portugal have given England an opportunity of fulfilling the duties of humanity with that noble generosity which characterises 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 considerable sums: ships, laden with provisions and all kinds of succours, were sent away with the utmost dispatch; and their arrival convinced the Portuguese, that an opposition in belief and worship does not restrain the beneficence of those who understand the claims of humanity. On the same occasion likewise the king of Spain signally displayed his tenderness for a near ally, and exerted in a conspicuous manner his humanity and generosity.

§6. It ought to contribute to the perfection of other states.A nation must not simply confine itself to the preservation of other states; it should likewise, according to its power and their want of its assistance, contribute to their perfection. We have already shewn (Prelim. §13) that natural society imposes on it this general obligation. We are now come to the proper place for treating of the obligation somewhat more in detail. A state is more or less perfect, as it is more or less adapted to attain the end of civil society, which consists in procuring for its members every thing of which they stand in need, for the necessities, the conveniences and enjoyments of life, and for their happiness in general,—in providing for the peaceful enjoyment of property, and the safe and easy administration of justice,—and, finally, in defending itself against all foreign violence (Book I. §15). Every nation therefore should occasionally, and according to its power, contribute, not only to put another nation in possession of these advantages, but likewise to render it capable of procuring them itself. Accordingly, a learned nation, if applied to for masters and teachers in the sciences, by another nation desirous of shaking off 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 virtuous Romans sent ambassadors to Greece to collect good laws, the Greeks were far from rejecting so reasonable and so laudable a request.

§7. But not by force.But though a nation be obliged to promote, as far as lies in its power, the perfection of others, it is not entitled forcibly to obtrude these good offices on them. Such an attempt would be a violation of their natural liberty. In order to compel any one to receive a kindness, we must have an authority over him; but nations are absolutely free and independent (Prelim. §4). Those ambitious Europeans who attacked the American nations, and subjected them to their greedy dominion, in order, as they pretended, to civilise them, and cause them to be instructed in the true religion,—those usurpers, I say, grounded themselves on a pretext equally unjust and ridiculous. It is strange to hear the learned and judicious Grotius assert, that a sovereign may justly take up arms to chastise nations which are guilty of enormous transgressions of the law of nature, which treat their parents with inhumanity like the Sogdians, which eat human flesh as the ancient Gauls, &c. What led him into this error, was his attributing to every independent man, and of course to every sovereign, an odd kind of right to punish faults which involve an enormous violation of the laws of nature, though they do not affect either his rights or his safety. But we have shewn (Book I. §169) that men derive the right of punishment solely from their right to provide for their own safety; and consequently they cannot claim it except against those by whom they have been injured. Could it escape Grotius, that, notwithstanding all the precautions added by him in the following paragraphs, his opinion opens a door to all the ravages of enthusiasm and fanaticism, and furnishes ambition with numberless pretexts? Mahomet and his successors have desolated and subdued Asia, to avenge the indignity done to the unity of the Godhead; all whom they termed associators or idolaters fell victims to their devout fury.

§8. The right to require the offices of humanity.Since nations ought to perform these duties or offices of humanity towards each other, according as one stands in need, and the other can reasonably comply with them,—every nation being free, independent, and sole arbitress of her own actions, it belongs to each to consider whether her situation warrants her in asking or granting any thing on this head. Thus 1. Every nation has a perfect right to ask of another that assistance and those kind offices which she conceives herself to stand in need of. To prevent her, would be doing her an injury. If she makes the application without necessity, she is guilty of a breach of duty; but in this respect, she is wholly independent of the judgment of others. A nation has a right to ask for these kind offices, but not to demand them.

§9. The right of judging whether they are to be granted.For, 2. These offices being due only in necessity, and by a nation which can comply with them without being wanting to itself; the nation that is applied to has, on the other hand, a right of judging whether the case really demands them, and whether circumstances will allow her to grant them consistently with that regard which she ought to pay to her own safety and interests: for instance, a nation is in want of corn, and applies to another nation to sell her a quantity of it:—in this case it rests with the latter party to judge whether, by a compliance with the request, they will not expose themselves to the danger of a scarcity: and if they refuse to comply, their determination is to be patiently acquiesced in. We have very lately seen a prudent performance of this duty on the part of Russia: she generously assisted Sweden when threatened with a famine, but refused to other powers the liberty of purchasing corn in Livonia, from the circumstance of standing herself in need of it, and, no doubt, from weighty political motives likewise.

§10.A nation is not to compel another to perform those offices of which the refusal is no wrong.Thus the right which a nation has to the offices of humanity is but an imperfect one: she cannot compel another nation to the performance of them. The nation that unreasonably refuses them, offends against equity, which consists in acting conformably to the imperfect right of another: but thereby no injury is done; injury or injustice being a trespass against the perfect right of another.

§11. Mutual love of nations.It is impossible that nations should mutually discharge all these several duties if they do not love each other. This is the pure source from which the offices of humanity should proceed; they will retain the character and perfection of it. Then nations will be seen sincerely and cheerfully to help each other, earnestly to promote their common welfare, and cultivate peace without jealousy or distrust.

§12. Each nation ought to cultivate the friendship of others.A real friendship will be seen to reign among them; and this happy state consists in a mutual affection. Every nation is obliged to cultivate the friendship of other nations, and carefully to avoid whatever might kindle their enmity against her. Wise and prudent nations often pursue this line of conduct from views of direct and present interest: a more noble, more general, and less direct interest, is too rarely the motive of politicians. If it be incontestable that men must love each other in order to answer the views of nature and discharge the duties which she prescribes them, as well as for their own private advantage,—can it be doubted that nations are under the like reciprocal obligation? Is it in the power of men, on dividing themselves into different political bodies, to break the ties of that universal society which nature has established amongst them?

§13. To perfect itself with a view to the advantage of others, and set them good examples.If a man ought to qualify himself for becoming useful to other men,—and a citizen, for rendering useful services to his country and fellow citizens,—a nation likewise, in perfecting herself, ought to have in view the acquisition of a greater degree of ability to promote the perfection and happiness of other nations: she should be careful to set them good examples, and avoid setting them a pattern of any thing evil. Imitation is natural to mankind: the virtues of a celebrated nation are sometimes imitated, and much more frequently its vices and defects.

§14. To take care of their glory.Glory being a possession of great importance to a nation, as we have shewn in a particular chapter expressly devoted to the subject, —the duty of a nation extends even to the care of the glory of other nations. In the first place, she should, on occasion, contribute to enable them to merit true glory: secondly, she should do them in this respect all the justice due to them, and use all proper endeavours that such justice be universally done them: finally, instead of irritating, she should kindly extenuate the bad effect which some slight blemishes may produce.

§15. Difference of religion ought not to preclude the offices of humanity.From the manner in which we have established the obligation of performing the offices of humanity, it plainly appears to be solely founded on the nature of man. Wherefore no nation can refuse them to another, under pretence of its professing a different religion: to be entitled to them, it is sufficient that the claimant is our fellow-creature. A conformity of belief and worship may become a new tie of friendship between nations; but no difference in these respects can warrant us in laying aside the character of men, or the sentiments annexed to it. As we have already related (§5) some instances well worthy of imitation, let us here do justice to the pontiff who at present fills the see of Rome, and has recently given a very remarkable example, and which cannot be 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 difference of religion. Such exalted sentiments cannot fail of raising a veneration for Benedict XIV. even amongst protestants.

§16. Rule and measure the offices of humanity.How happy would mankind be, were these amiable precepts of nature every where observed! Nations would communicate to each other their products and their knowledge; a profound peace would prevail all over the earth, and enrich it with its invaluable fruits; industry, the sciences, and the arts, would be employed in promoting our happiness, no less than in relieving our wants; violent methods of deciding contests would be no more heard of: all differences would be terminated by moderation, justice, and equity; the world would have the appearance of a large republic; men would live every-where 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 passions, and private and mistaken interest, will forever prevent its being realised. Let us then consider what limitations the present state of men, and the ordinary maxims and conduct of nations, may render necessary in the practice of these precepts of nature, which are in themselves so noble and excellent.

The law of nature cannot condemn the good to become the dupes and prey of the wicked, and the victims of their injustice and ingratitude. Melancholy experience shews 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, or one in whom we discover a desire of plundering and oppressing us; and the care of our own safety forbids it. We have seen (§3, &c.) that a nation does not owe her assistance and the offices of humanity to other nations, except so far as the grant of them is reconcilable with her duties to herself. Hence it evidently follows, that, though the universal love of mankind obliges us to grant at all times, and to all, even to our enemies, those offices which can only tend to render them more moderate and virtuous, because no inconvenience is to be apprehended from granting them,—we are not obliged to give them such succours as probably may become destructive to ourselves. Thus, 1. the exceeding importance of trade not only to the wants and conveniences of life, but likewise to the strength of a state, and furnishing it with the means of defending itself against its enemies,—and the insatiable avidity of those nations which seek wholly and exclusively to engross it,—thus, I say, these circumstances authorise a nation possessed of a branch of trade, or the secret of some important manufacture or fabric, to reserve to herself those sources of wealth, and, instead of communicating them to foreign nations, to take 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 endeavouring, by every fair and just method, to retain the several branches of it in her own hand?

2. As to things directly and more particularly useful for war, a nation is under no obligation to sell them to others, of whom it has the smallest suspicion; and prudence even declares against it. Thus, by the Roman laws, people were very justly prohibited to instruct the barbarous nations in building gallies. Thus, in England laws have been enacted, to prevent the best method of ship-building from being carried out of the kingdom.

This caution is to be carried farther, with respect to nations more justly suspected. Thus, when the Turks were successfully pursuing their victorious career, and rapidly advancing to the zenith of power, all christian nations ought, independent of every bigotted consideration, to have considered them as enemies; even the most distant of those nations, though not engaged in any contest with them, would have been justifiable in breaking off all commerce with a people who made it their profession to subdue by force of arms all who would not acknowledge the authority of their prophet.

§17. Particular limitation with regard to the prince.Let us farther observe, with regard to the prince in particular, that he ought not, in affairs of this nature, to obey without reserve all the suggestions of a noble and generous heart impelling him to sacrifice his own interests to the advantage of others or to motives of generosity; because it is not his private interest that is in question, but that of the state,—that of the nation who has committed herself to his care. Cicero says that a great and elevated soul despises pleasures, wealth, life itself, and makes no account of them, when the common utility lies at stake. He is right, and such sentiments are to be admired in a private person; but generosity is not to be exerted at the expense of others. The head or conductor of a nation ought not to practise that virtue in public affairs without great circumspection, nor to a greater extent than will redound to the glory and real advantage of the state. As to the common good of human society, he ought to pay the same attention to it, as the nation he represents would be obliged to pay, were the government of her affairs in her own hand.

§18. No nation ought to injure others.But though the duties of a nation towards herself set bounds to the obligation of performing the offices of humanity, they cannot in the least affect the prohibition of doing any harm to others, of causing them any prejudice,—in a word, of injuring them. ... If every man is, by his very nature, obliged to assist in promoting the perfection of others, much more cogent are the reasons which forbid him to increase their imperfection and that of their condition. The same duties are incumbent on nations (Prelim. §§5, 6). No nation therefore ought to commit any actions tending to impair the perfection of other nations, and that of their condition, or to impede their progress,—in other words, to injure them. And since the perfection of a nation consists in her apptitude to attain the end of civil society,—and the perfection of her condition, in not wanting any of the things necessary to that end (Book I. §14)—no one nation ought to hinder another from attaining the end of civil society, or to render her incapable of attaining it. This general principle forbids nations to practise any evil manoeuvres tending to create disturbance in another state, to foment discord, to corrupt its citizens, to alienate its allies, to raise enemies against it, to tarnish its glory, and to deprive it of its natural advantages.

However, it will be easily conceived that negligence in fulfilling the common duties of humanity, and even the refusal of these duties or offices, is not an injury. To neglect or refuse contributing to the perfection of a nation, is not impairing that perfection.

It must be further observed, that when we are making use of our right, when we are doing what we owe to ourselves or to others, if, from this action of ours, any prejudice results to the perfection of another,—any detriment to his exterior condition,—we are not guilty of an injury: we are doing what is lawful, or even what we ought to do. The damage which accrues to the other, is no part of our intention: it is merely an accident, the imputability of which must be determined by the particular circumstances. For instance, in case of a lawful defence, the harm we do to the aggressor is not the object we aim at:—we act only with a view to our own safety: we make use of our right; and the aggressor alone is chargeable with the mischief which he brings on himself.

§19. Offences.Nothing is more opposite to the duties of humanity, nor more contrary to that society which should be cultivated by nations, than offences, or actions which give a just displeasure to others: every nation therefore should carefully avoid giving any other nation real offence: I say, real; for, should others take offence at our behaviour when we are only using our rights or fulfilling our duties, the fault lies with them, not with us. Offences ex-cite such asperity and rancour between nations, that we should avoid giving any room even for ill-grounded picques, when it can be done without any inconveniency, or failure in our duty. It is said that certain medals and dull jests irritated Lewis XIV. against the United Provinces, to such a degree, as to induce him, in 1672, to undertake the destruction of that republic.

§20. Bad custom of the ancients.The maxims laid down in this chapter,—those sacred precepts of nature,—were for a long time unknown to nations. The ancients had no notion of any duty they owed to nations with whom they were not united by treaties of friendship. The Jews especially placed a great part of their zeal in hating all nations; and, as a natural consequence, they were detested and despised by them in turn. At length the voice of nature came to be heard among civilised nations; they perceived that all men are brethren. When will the happy time come that they shall behave as such?

CHAPTER II

Of the Mutual Commerce between Nations.

§21. General obligation of nations to carry on mutual commerce.All men ought to find on earth the things they stand in need of. In the primitive state of communion, they took them wherever they happened to meet with them, if another had not before appropriated them to his own use. The introduction of dominion and property could not deprive men of so essential a right, and consequently it cannot take place without leaving them, in general, some mean of procuring what is useful or necessary to them. This mean is commerce: by it every man may still supply his wants. Things being now become property, there is no obtaining them without the owner’s consent; nor are they usually to be had for nothing; but they may be bought, or exchanged for other things of equal value. Men are therefore under an obligation to carry on that commerce with each other, if they wish not to deviate from the views of nature; and this obligation extends also to whole nations or states (Prelim. §5). It is seldom that nature is seen in one place to produce every thing necessary for the use of man: one country abounds in corn, another in pastures and cattle, a third in timber and metals, &c. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary; and the views of nature, our common mother, will be fulfilled. Further, one country is fitter for some kind of products than another, as, for instance, fitter for the vine than for tillage. If trade and barter take place, every nation, on the certainty of procuring what it wants, will employ its land and its industry in the most advantageous manner; and mankind in general prove gainers by it. Such are the foundations of the general obligation incumbent on nations reciprocally to cultivate commerce.

§22. They should favour trade.Every nation ought, therefore, not only to countenance trade, as far as it reasonably can, but even to protect and favour it. The care of the public roads,—the safety of travellers,—the establishment of ports, of places of sale, of well-regulated fairs,—all contribute to this end. And where these are attended with expense, the nation, as we have already observed (Book I. §103), may, by tolls and other duties equitably proportioned, indemnify itself for its disbursements.

§23. Freedom of trade.Freedom being very favourable to commerce, it is implied in the duties of nations, that they should support it as far as possible, instead of cramping it by unnecessary burdens or restrictions. Wherefore those private privileges and tolls, which obtain in many places, and press so heavily on commerce, are deservedly to be reprobated, unless founded on very important reasons arising from the public good.

§24. Right of trading, belonging to nations.Every nation, in virtue of her natural liberty, has a right to trade with those who are willing to correspond with such intentions; and to molest her in the exercise of her right is doing her an injury. The Portuguese, at the time of their great power in the East Indies, were for excluding all other European nations from any commerce with the Indians: but such a pretension, no less iniquitous than chimerical, was treated with contempt; and the other nations agreed to consider any acts of violence in support of it, as just grounds for making war against the Portuguese. This common right of all nations is, at present, generally acknowledged under the appellation of freedom of trade.

§25. Each nation is sole judge of the propriety of commerce on her own part.But although it be in general the duty of a nation to carry on commerce with others, and though each nation has a right to trade with those countries that are willing to encourage her,—on the other hand, a nation ought to decline a commerce which is disadvantageous or dangerous (Book 1. §98); and since, in case of collision, her duties to herself are paramount to her duties to others, she has a full and clear right to regulate her conduct, in this respect, by the consideration of what her advantage or safety requires. We have already seen (Book I. §92) that each nation is, on her own part, the sole judge, whether or not it be convenient for her to cultivate such or such branch of commerce: she may therefore either embrace or reject any commercial proposals from foreign nations, without affording them any just grounds to accuse her of injustice, or to demand a reason for such refusal, much less to make use of compulsion. She is free in the administration of her affairs, without being accountable to any other. The obligation of trading with other nations is in itself an imperfect obligation (Prelim. §17), and gives them only an imperfect right; so that, in cases where the commerce would be detrimental, that obligation is entirely void. When the Spaniards attacked the Americans under a pretence that those people refused to traffic with them, they only endeavoured to throw a colourable veil over their own insatiable avarice.

§26. Necessity of commercial treaties.These few remarks, together with what we have already said on the subject (Book I. Chap. VIII.) may suffice to establish the principles of the natural law of nations respecting the mutual commerce of states. It is not difficult to point out, in general, what are the duties of nations in this respect, and what the law of nature prescribes to them for the good of the great society of mankind. But as each nation is only so far obliged to carry on commerce with others, as she can do it without being wanting to herself,—and as the whole ultimately depends on the judgment that each state may form of what it can and ought to do in particular cases,—nations cannot count on any thing more than generalities, such as the inherent liberty of each to carry on trade,—and, moreover, on imperfect rights, which depend on the judgment of others, and, consequently, are ever uncertain. Wherefore, if they wish to secure to themselves any definite and constant advantages, they must procure them by treaties.

§27. General rule concerning those treaties.Since a nation has a full right to regulate herself in commercial affairs by what is useful or advantageous to her, she may make such commercial treaties as she thinks proper; and no other nation has a right to take offence, provided those treaties do not affect the perfect rights of others. If, by the engagements contracted, a nation, unnecessarily, or without powerful reasons, renders herself incapable of joining in the general trade which nature recommends between nations, she trespasses against her duty. But the nation being the sole judge in this case (Prelim. §16), other nations are bound to respect her natural liberty,—to acquiesce in her determination, and even to suppose that she is actuated by substantial reasons. Every commercial treaty, therefore, which does not impair the perfect right of others, is allowable between nations; nor can the execution of it be lawfully opposed. But those commercial treaties alone are in themselves just and commendable, which pay to the general interest of mankind as great a degree of respect as is possible and reasonable in the particular case.

§28. Duty of nations in making those treaties.As express promises and engagements should be inviolable, every wise and virtuous nation will be attentive to examine and weigh a commercial treaty before she concludes it, and to take care that she be not thereby engaged to any thing contrary to the duties which she owes to herself and others.

§29. Perpetual or temporary treaties, or treaties revocable at pleasure.Nations may in their treaties insert such clauses and conditions as they think proper: they are at liberty to make them perpetual, or temporary, or dependent on certain events. It is usually most prudent not to engage forever, as circumstances may afterwards intervene, by which the treaty might become very oppressive to one of the contracting parties. A nation may confine a treaty to the grant of only a precarious right,—reserving to herself the liberty of revoking it at pleasure. We have already observed (Book I. §94), that a simple permission does not, any more than long custom (ibid. §95), give any perfect right to a trade. These things are therefore not to be confounded with treaties,—not even with those which give only a precarious right.

§30. Nothing contrary to the tenor of a treaty can be granted to a third party.When once a nation has entered into engagements by treaty, she is no longer at liberty to do, in favour of others, contrary to the tenor of the treaty, what she might otherwise have granted to them agreeably to the duties of humanity or the general obligation of mutual commerce: for she is to do for others no more than what is in her power; and having deprived herself of the liberty of disposing of a thing, that thing is no longer in her power. Therefore when a nation has engaged to another that she will sell certain merchandise or produce to the latter only,—as, for instance, corn,—she can no longer sell it to any other. The case is the same in a contract to purchase certain goods of that nation alone.

§31. How far lawful to give up by treaty the liberty of trading with other nations.But it will be asked, how and on what occasions a nation may enter into engagements which deprive her of the liberty to fulfil her duties to others. As the duties we owe to ourselves are paramount to those we owe to others,—if a nation finds her safety and substantial advantage in a treaty of this nature, she is unquestionably justifiable in contracting it,—especially as she does not thereby interrupt the general commerce of nations, but simply causes one particular branch of her own commerce to pass through other hands, or ensures to a particular people certain things of which they stand in need. If a state which stands in need of salt can secure a supply of it from another, by engaging to sell her corn and cattle only to that other nation, who will doubt but she has a right to conclude so salutary a treaty? In this case, her corn or cattle are goods which she disposes of for supplying her own wants. But, from what we have observed (§28), engagements of this kind are not to be entered into, without very good reasons. However, be the reasons good or bad, the treaty is still valid, and other nations have no right to oppose it (§27).

§32.A nation may abridge its commerce in favour of another.Every one is at liberty to renounce his right: a nation therefore may lay a restriction on her commerce in favour of another nation, and engage not to traffic in a certain kind of goods, or to forbear trading with such and such a country, &c. And in departing from such engagements, she acts against the perfect right of the nation with which she has contracted; and the latter has a right to restrain her. The natural liberty of trade is not hurt by treaties of this nature: for that liberty consists only in every nation being unmolested in her right to carry on commerce with those that consent to traffic with her; each one remaining free to embrace or decline a particular branch of commerce, as she shall judge most advantageous to the state.

§33.A nation may appropriate to itself a particular branch of trade.Nations not only carry on trade for the sake of procuring necessary or useful articles, but also with a view to make it a source of opulence. Now, wherever a profit is to be made, it is equally lawful for every one to participate in it: but the most diligent may lawfully anticipate the others by taking possession of an advantage which lies open to the first occupier;—he may even secure the whole entirely to himself, if he has any lawful means of appropriating it. When therefore a particular nation is in sole possession of certain articles, another nation may lawfully procure to herself by treaty the advantage of being the only buyer, and then sell them again all over the world. And as it is indifferent to nations from what hand they receive the commodities they want, provided they obtain them at a reasonable price, the monopoly of this nation does not clash with the general duties of humanity, provided that she do not take advantage of it to set an unreasonable and exorbitant price on her goods. Should she, by an abuse of her monopoly, exact an immoderate profit, this would be an offence against the law of nature, as by such an exaction she either deprives other nations of a necessary or agreeable article which nature designed for all men, or obliges them to purchase it at too dear a rate: nevertheless she does not do them any positive wrong, because, strictly speaking, and according to external right, the owner of a commodity may either keep it, or set what price he pleases on it. Thus the Dutch, by a treaty with the king of Ceylon, have wholly engrossed the cinnamon trade: yet, whilst they keep their profits within just limits, other nations have no right to complain.

But, were the necessaries of life in question,—were the monopolist inclined to raise them to an excessive price,—other nations would be authorised by the care of their own safety, and for the advantage of human society, to form a general combination in order to reduce a greedy oppressor to reasonable terms. The right to necessaries is very different from that to things adapted only to convenience and pleasure, which we may dispense with, if they be too dear. It would be absurd that the subsistence and being of other nations should depend on the caprice or avidity of one.

§34. Consuls.Among the modern institutions for the advantage of commerce, one of the most useful is that of consuls, or persons residing in the large trading cities, and especially the seaports, of foreign countries, with a commission to watch over the rights and privileges of their nation, and to decide disputes between her merchants there. When a nation trades largely with a country, it is requisite to have there a person charged with such a commission: and as the state which allows of this commerce must naturally favour it,—for the same reason also, it must admit the consul. But there being no absolute and perfect obligation to this, the nation that wishes to have a consul, must procure this right by the commercial treaty itself.

The consul being charged with the affairs of his sovereign, and receiving his orders, continues his subject, and accountable to him for his actions.

The consul is no public minister (as will appear by what we shall say of the character of ministers, in our fourth book), and cannot pretend to the privileges annexed to such character. Yet, bearing his sovereign’s commission, and being in this quality received by the prince in whose dominions he resides, he is, in a certain degree, entitled to the protection of the law of nations. This sovereign, by the very act of receiving him, tacitly engages to allow him all the liberty and safety necessary to the proper discharge of his functions, without which the admission of the consul would be nugatory and delusive.

The functions of a consul require, in the first place, that he be not a subject of the state where he resides; as, in this case, he would be obliged in all things to conform to its orders, and thus not be at liberty to acquit himself of the duties of his office.

They seem even to require that the consul should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned, unless he himself violate the law of nations by some enormous crime.

And though the importance of the consular functions be not so great as to procure to the consul’s person the inviolability and absolute independence enjoyed by public ministers,—yet, being under the particular protection of the sovereign who employs him, and intrusted with the care of his concerns,—if he commits any crime, the respect due to his master requires that he should be sent home to be punished. Such is the mode pursued by states that are inclined to preserve a good understanding with each other. But the surest way is, expressly to settle all these matters, as far as is practicable, by the commercial treaty.

Wicquefort, in his treatise of The Ambassador, Book I. §5, says that consuls do not enjoy the protection of the law of nations, and that, both in civil and criminal cases, they are subject to the justice of the place where they reside. But the very instances he quotes contradict his proposition. The states-general of the United Provinces, whose consul had been affronted and put under arrest by the governor of Cadiz, complained of it to the court of Madrid as a breach of the law of nations. And in the year 1634 the republic of Venice was near coming to a rupture with pope Urban VIII. on account of the violence offered to the Venetian consul by the governor of Ancona. The governor, suspecting this consul to have given information detrimental to the commerce of Ancona, had persecuted him, seized his furniture and papers, and caused him to be summoned, declared guilty of contumacy, and banished, under pretence that, contrary to public prohibition, he had caused goods to be unloaded in a time of contagion. This consul’s suc-cessor he likewise imprisoned. The Venetian senate warmly insisted on having due satisfaction: and, on the interposition of the ministers of France, who were apprehensive of an open rupture, the pope obliged the governor of Ancona to give the republic satisfaction accordingly.

In default of treaties, custom is to be the rule on these occasions; for a prince who receives a consul without express conditions, is supposed to receive him on the footing established by custom.

CHAPTER III

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

§35. Dignity of nations or sovereign states.Every nation, every sovereign and independent state, deserves consideration and respect, because it makes an immediate figure in the grand society of the human race, is independent of all earthly power, and is an assemblage of a great number of men, which is, doubtless, more considerable than any individual. The sovereign represents his whole nation; he unites in his person all its majesty. No individual, though ever so free and independent, can be placed in competition with a sovereign; this would be putting a single person upon an equality with an united multitude of his equals. Nations and sovereigns are therefore under an obligation, and at the same time have a right, to maintain their dignity, and to cause it to be respected, as being of the utmost importance to their safety and tranquillity.

§36. Their equality.We have already observed (Prelim. §18) that nature has established a perfect equality of rights between independent nations. Consequently none can naturally lay claim to any superior prerogative: for, whatever privileges any one of them derives from freedom and sovereignty, the others equally derive the same from the same source.

§37. Precedency,And since precedency or pre-minence of rank is a prerogative, no nation, no sovereign, can naturally claim it as a right. Why should nations, that are not dependent on him, give up any point to him against their will? However, as a powerful and extensive state is much more considerable in universal society, than a small state, it is reasonable that the latter should yield to the former, on occasions where one must necessarily yield to the other, as in an assembly,—and should pay it those mere ceremonial deferences, which do not in fact destroy their equality, and only shew a priority of order, a first place among equals. Other nations will naturally assign the first place to the more powerful state; and it would be equally useless as ridiculous for the weaker one obstinately to contend about it. The antiquity of the state enters also into consideration on these occasions: a new-comer cannot dispossess any one of the honours he has enjoyed; and he must produce very strong reasons, before he can obtain a preference.

§38. The form of government is foreign to this question.The form of government is naturally foreign to this question. The dignity, the majesty, resides originally in the body of the state; that of the sovereign is derived from his representing the nation. And can it be imagined that a state possesses more or less dignity according as it is governed by a single person, or by many? At present kings claim a superiority of rank over republics: but this pretension has no other support than the superiority of their strength. Formerly, the Roman republic considered all kings as very far beneath them: but the monarchs of Europe, finding none but feeble republics to oppose them, have disdained to admit them to an equality. The republic of Venice, and that of the United Provinces, have obtained the honours of crowned heads; but their ambassadors yield precedency to those of kings.

§39.A state ought to keep its rank, notwith-standing any changes in the form of its government.In consequence of what we have just established, if the form of government in a nation happens to be changed, she will still preserve the same honours and rank of which she was before in possession. When England had abolished royalty, Cromwell would suffer no abatement of the honours that had been paid to the crown, or to the nation; and he every-where maintained the English ambassadors in the rank they had always possessed.

§40. In this respect, treaties and established customs ought to be observed.If the grades of precedency have been settled by treaties, or by long custom founded on tacit consent, it is necessary to conform to the established rule. To dispute with a prince the rank he has acquired in this manner, is doing him an injury, inasmuch as it is an expression of contempt for him, or a violation of engagements that secure to him a right. Thus, by the injudicious partition between the sons of Charlemagne, the elder having obtained the empire, the younger, who received the kingdom of France, yielded precedency to him the more readily, as there still remained at that time a recent idea of the majesty of the real Roman empire. His successors followed the rule they found established:—they were imitated by the other kings of Europe; and thus the imperial crown continues to possess, without opposition, the first rank in Christendom. With most of the other crowns, the point of precedency remains yet undetermined.

Some people would have us to look upon the precedency of the emperor as something more than the first place among equals: they would fain attribute to him a superiority over all kings, and in a word make him the temporal head of Christendom. And it in fact appears, that many emperors entertained ideas of such pretensions,—as if, by reviving the name of the Roman empire, they could also revive its rights. Other states have been on their guard against these pretensions. We may see in Mezeray the precautions taken by king Charles V. when the emperor Charles IV. visited France, “for fear,” says the historian, “lest that prince, and his son the king of the Romans, should found any right of superiority on his courtesy.” Bodinus relates, that “the French took great offence at the emperor Sigismund’s placing himself in the royal seat in full parliament, and at his having knighted the senechal de Beaucaire,” —adding, that, “to repair the egregious error they had committed in suffering it, they would not allow the same emperor, when at Lyons, to make the count of Savoy a duke.” At present a king of France would doubtless think it a degradation of his dignity, were he to intimate the most distant idea that another might claim any authority in his kingdom.

§41. Of the name and honours given by the nation to its conductor.As a nation may confer on her conductor what degree of authority, and what rights she thinks proper, she is equally free in regard to the name, the titles, and honours, with which she may choose to decorate him. But discretion and the care of her reputation require that she should not, in this respect, deviate too far from the customs commonly established among civilised 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 mis-placed: yet who does not know how powerful an influence they have on the minds of mankind? This is then a more serious affair than it appears at the first glance. The nation ought to take care not to debase herself before other states, and not to degrade her chief by too humble a title: she ought to be still more careful not to swell his heart by a vain name, by unbounded honours, so as to inspire him with the idea of arrogating to himself a commensurate authority over her, or of acquiring a proportionate power by unjust conquests. On the other hand, an exalted title may engage the chief to support with greater firmness the dignity of the nation. Prudence is guided by circumstances, and, on every occasion, keeps within due bounds. “Royalty,” says a respectable author, who may be believed on this subject, “rescued the house of Brandenburg from that yoke of servitude under which the house of Austria then kept all the German princes. This was a bait which Frederic I. threw out to all his posterity, saying to them as it were, I have acquired a title for you: do you render yourselves worthy of it: I have laid the foundations of your greatness; it is you who are to finish the work.”

§42. Whether a sovereign may assume what title and honours he pleases.If the conductor of the state is sovereign, he has in his hands the rights and authority of the political society; and consequently he may himself determine what title he will assume, and what honours shall be paid to him, unless these have been already determined by the fundamental laws, or that the limits which have been set to his power manifestly oppose such as he wishes to assume. His subjects are equally obliged to obey him in this, as in whatever he commands by virtue of a lawful authority. Thus the czar Peter I. grounding his pretensions on the vast extent of his dominions, took upon himself the title of emperor.

§43. Right of other nations in this respect.But foreign nations are not obliged to give way to the will of a sovereign who assumes a new title, or of a people who call their chief by what name they please.

§44. Their duty.However, if this title has nothing unreasonable, or contrary to received customs, it is altogether agreeable to the mutual duties which bind nations together, to give to a sovereign or conductor of a state the same title that is given him by his people. But if this title is contrary to custom, if it implies attributes which do not belong to him who affects it, foreign nations may refuse it without his having reason to complain. The title of “Majesty” is consecrated by custom to monarchs who command great nations. The emperors of Germany have long affected to reserve it to themselves, as belonging solely to the imperial crown. But the kings asserted with reason, that there was nothing on earth more eminent or more august than their dignity: they therefore refused the title of majesty to him who refused it to them; and at present, except in a few instances founded on particular reasons, the title of majesty is a peculiar attribute of the royal character.

As it would be ridiculous for a petty prince to take the title of king, and assume the style of “Majesty,” foreign nations, by refusing to comply with this whim, do nothing but what is conformable to reason and their duty. However, if there reigns anywhere a sovereign, who, notwithstanding the small extent of his power, is accustomed to receive from his neighbours the title of king, distant nations who would carry on an intercourse with him, cannot refuse him that title. It belongs not to them to reform the customs of distant countries.

§45. How titles and honours may be secured.The sovereign who wishes constantly to receive certain titles and honours from other powers, must secure them by treaties. Those who have entered into engagements in this way are obliged to conform to them, and cannot deviate from the treaties without doing him an injury. Thus, in the examples we have produced (§§41 and 42), the czar and the king of Prussia took care to negotiate before-hand with the courts in friendship with them, to secure their being acknowledged under the new titles they intended to assume.

The popes have formerly pretended that it belonged to the tiara alone to create new crowns; they had the confidence to expect that the superstition of princes and nations would allow them so sublime a prerogative. But it was eclipsed at the revival of letters. The emperors of Germany, who formed the same pretensions, were at least countenanced by the example of the ancient Roman emperors. They only want the same power in order to have the same right.

§46. We must conform to general custom.In default of treaties, we ought, with respect to titles, and, in general, every other mark of honour, to conform to the rule established by general custom. To attempt a deviation from it with respect to a nation or sovereign, when there is no particular reason for such innovation, is expressing either contempt or ill-will towards them;—a conduct equally inconsistent with sound policy and with the duties that nations owe to each other.

§47. Mutual respect, which sovereigns owe to each other.The greatest monarch ought to respect in every sovereign the eminent character with which he is invested. The independence, the equality of nations,—the reciprocal duties of humanity,—all these circumstances should induce him to pay even to the chief of a petty state the respect due to the station which he fills. The weakest state is composed of men as well as the most powerful; and our duties are the same towards all those who do not depend on us.

But this precept of the law of nature does not extend beyond what is essential to the respect which independent nations owe to each other, or that conduct, in a word, which shews that we acknowledge a state or its chief to be truly independent and sovereign, and consequently entitled to every thing due to the quality of sovereignty. But, on the other hand, a great monarch being, as we have already observed, a very important personage in human society, it is natural, that, in matters merely ceremonial, and not derogatory to the equality of rights between nations, he should receive honours to which a petty prince can have no pretensions: and the latter cannot refuse to pay the former every mark of respect which is not inconsistent with his own independence and sovereignty.

§48. How a sovereign ought to maintain his dignity.Every nation, every sovereign, ought to maintain their dignity (§35) by causing due respect to be paid to them; and especially they ought not to suffer that dignity to be impaired. If then there are titles and honours which by constant custom belong to a prince, he may insist upon them; and he ought to do it on occasions where his glory is concerned.

But it is proper to distinguish between neglect or the omission of what the established usage requires, and positive acts of disrespect and insult. The prince may complain of an instance of neglect, and, if it be not repaired, may consider it as an indication of ill-will: he has a right to demand, even by force of arms, the reparation of an insult. The czar Peter the First, in his manifesto against Sweden, complained that the cannon had not been fired on his passing at Riga. He might think it strange that they did not pay him this mark of respect, and he might complain of it; but to have made this the subject of a war, must have indicated a preposterous prodigality of human blood.

CHAPTER IV

Of the Right to Security, and the Effects of the Sovereignty and Independence of nations.

§49. Right to security.In vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible,—what is proper and conformable to our duties. We have then in general a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has therefore a right to prevent other nations from obstructing her preservation, her perfection, and happiness,—that is, to preserve herself from all injuries (§18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.

§50. It produces the right of resistance;It is safest to prevent the evil, when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.

§51. and that of obtaining reparation;When the evil is done, the same right to security authorises the offended party to endeavour to obtain a complete reparation, and to employ force for that purpose, if necessary.

§52. and the right of punishing.Finally, the offended party have a right to provide for their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. They only make use of their right in all these measures, which they adopt with good reason: and if evil thence results to him who has reduced them to the necessity of taking such steps, he must impute the consequences only to his own injustice.

§53. Right of all nations against a mischievous people.If then there is any-where a nation of a restless and mischievous disposition, ever ready to injure others, to traverse their designs, and to excite domestic disturbances in their dominions,—it is not to be doubted that all the others have a right to form a coalition in order to repress and chastise that nation, and to put it forever 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 nation has a right to interfere in the government of another state.It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.

§55. One sovereign cannot make himself the judge of the conduct of another.The sovereign is he to whom the nation has intrusted the empire, and the care of the government: she has invested him with her rights; she alone is directly interested in the manner in which the conductor she has chosen makes use of his power. It does not then belong to any foreign power to take cognisance of the administration of that sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it. If he loads his subjects with taxes, and if he treats them with severity, the nation alone is concerned in the business; and no other is called upon to oblige him to amend his conduct, and follow more wise and equitable maxims. It is the part of prudence to point out the occasions when officious and amicable representations may be made to him. The Spaniards violated all rules, when they set themselves up as judges of the Inca Athualpa. If that prince had violated the law of nations with respect to them, they would have had a right to punish him. But they accused him of having put some of his subjects to death, of having had several wives, &c.—things, for which he was not at all accountable to them; and, to fill up the measure of their extravagant injustice, they condemned him by the laws of Spain.

§56. How far lawful to interfere in a quarrel between a sovereign and his subjects.But if the prince, by violating the fundamental laws, gives his subjects a legal right to resist him,—if tyranny becoming insupportable obliges the nation to rise in their own defence,—every foreign power has a right to succour an oppressed people who implore their assistance. The English justly complained of James II. The nobility and the most distinguished patriots, having determined to check him in the prosecution of his schemes, which manifestly tended to overthrow the constitution, and to destroy the liberties and the religion of the people,—applied for assistance to the United Provinces. The authority of the prince of Orange had, doubtless, an influence on the deliberations of the states-general; but it did not lead them to the commission of an act of injustice: for when a people from good reasons take up arms against an oppressor, it is but an act of justice and generosity to assist brave men in the defence of their liberties. Whenever therefore matters are carried so far as to produce a civil war, foreign powers may assist that party which appears to them to have justice on its side. He who assists an odious tyrant,—he who declares for an unjust and rebellious people,—violates his duty. But when the bands of the political society are broken, or at least suspended, between the sovereign and his people, the contending parties may then be considered as two distinct powers; and since they are both equally independent of all foreign authority, nobody has a right to judge them. Either may be in the right; and each of those who grant their assistance may imagine that he is acting in support of the better cause. It follows then, in virtue of the voluntary law of nations (see Prelim. §21), that the two parties may act as having an equal right, and behave to each other accordingly, till the decision of the affair.

But we ought not to abuse this maxim, and make a handle of it to authorise odious machinations against the internal tranquillity of states. It is a violation of the law of nations to invite those subjects to revolt who actually pay obedience to their sovereign, though they complain of his government.

The practice of nations is conformable to our maxims. When the German protestants came to the assistance of the reformed party in France, the court never attempted to treat them otherwise than on the usual footing of enemies in general, and according to the laws of war. France was at the same time engaged in assisting the Netherlands then in arms against Spain,—and expected that her troops should be considered in no other light than as auxiliaries in a regular war. But no power ever fails to complain, as of an atrocious wrong, if any one attempts by his emissaries to excite his subjects to revolt.

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 Antaeus, a Busiris, and a Diomede.

§57. Right of opposing the interference of foreign powers in the affairs of government.After having established the position that foreign nations have no right to interfere in the government of an independent state, it is not difficult to prove that the latter has a right to oppose such interference. To govern herself according to her own pleasure, is a necessary part of her independence. A sovereign state cannot be constrained in this respect, except it be from a particular right which she has herself given to other states by her treaties; and even if she has given them such a right, yet it cannot, in an affair of so delicate a nature as that of government, be extended beyond the clear and express terms of the treaties. In every other case a sovereign has a right to treat those as enemies, who attempt to interfere in his domestic affairs otherwise than by their good offices.

§58. The same rights with respect to religion.Religion is in every sense an object of great importance to a nation, and one of the most interesting subjects on which the government can be employed. An independent people are accountable for their religion to God alone: in this particular, as in every other, they have a right to regulate their conduct according to the dictates of their own conscience, and to prevent all foreign interference in an affair of so delicate a nature. The custom, long kept up in Christendom, of causing all the affairs of religion to be decided and regulated in a general council, could only have been introduced by the singular circumstance of the submission of the whole church to the same civil government,—the Roman empire. When that empire was overthrown, and gave place to many independent kingdoms, this custom was found contrary to the first principles of government, to the very idea of independent states, and political societies. It was, however, long supported by prejudice, ignorance and superstition, by the authority of the popes, and the power of the clergy, and still respected even at the time of the reformation. The states who had embraced the reformed religion offered to submit to the decisions of an impartial council lawfully assembled. At present they would not hesitate to declare, that, in matters of religion, they are equally independent of every power on earth, as they are in the affairs of civil government. The general and absolute authority of the pope and council is absurd in every other system than that of those popes who strove to unite all Christendom in a single body, of which they pretended to be the supreme monarchs. But even catholic sovereigns have endeavoured to restrain that authority within such limits as are consistent with their supreme power: they do not receive the decrees of council 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.

§59. No nation can be constrained with respect to religion.It is then certain, that we cannot, in opposition to the will of a nation, interfere in her religious concerns, without violating her rights, and doing her an injury. Much less are we allowed to employ force of arms to oblige her to receive a doctrine and a worship which we consider as divine. What right have men to set themselves up as the defenders and protectors of the cause of God? He can, whenever he pleases, lead nations to the knowledge of himself, by more effectual means than those of violence. Persecutors make no true converts. The monstrous maxim of extending religion by the sword is a subversion of the rights of mankind, and the most terrible scourge of nations. Every madman will fancy he is fighting in the cause of God, and every aspiring spirit will use that pretext as a cloak for his ambition. While Charlemagne was ravaging Saxony with fire and sword in order to plant christianity there, the successors of Mahomet were ravaging Asia and Africa, to establish the Koran in those parts.

§60. Offices of humanity in these matters.But it is an office of humanity to labour by mild and lawful means to persuade a nation to receive a religion which we believe to be the only one that is true and salutary. Missionaries may be sent to instruct the people;Missionaries. and this care is altogether conformable to the attention which every nation owes to the perfection and happiness of others. But it must be observed, that, in order to avoid doing an injury to the rights of a sovereign, the missionaries ought to abstain from preaching clandestinely, or without his permission, a new doctrine to his people. He may refuse to accept their proffered services; and if he orders them to leave his dominions, they ought to obey. They should have a very express order from the King of kings, before they can lawfully disobey a sovereign who commands according to the extent of his power: and the prince who is not convinced of that extraordinary order of the Deity, will do no more than exert his lawful rights, in punishing a missionary for disobedience. But what if the nation, or a considerable part of the people, are desirous of retaining the missionary, and following his doctrine?—In a former part of this 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. Circumspection to be used.This is a very delicate subject; and we cannot authorise an inconsiderate zeal for making proselytes, without endangering the tranquillity of all nations, and even exposing those who are engaged in making converts, to act inconsistently with their duty, at the very time they imagine they are accomplishing the most meritorious work. For it is certainly performing a very bad office to a nation, and doing her an essential injury, to spread a false and dangerous religion among the inhabitants. Now there is no person who does not believe his own religion to be the only true and safe one. Recommend, kindle in all hearts the ardent zeal of the missionaries, and you will see Europe inundated with Lamas, Bonzes and Dervises, while monks of all kinds will over-run Asia and Africa. Protestant ministers will crowd to Spain and Italy, in defiance of the inquisition, while the jesuits will spread themselves among the protestants in order to bring them back into the pale of the church. Let the catholics reproach the protestants as much as they please with their lukewarmness, the conduct of the latter is undoubtedly more agreeable to reason and the law of nations. True zeal applies itself to the task of making a holy religion flourish in the countries where it is received, and of rendering it useful to the manners of the people and to the state: and, without forestalling the dispositions of providence, it can find sufficient employment at home, until an invitation come from foreign nations, or a very evident commission be given from heaven, to preach that religion abroad. Finally, let us add, that, before we can lawfully undertake to preach a particular religion to the various nations of the earth, we must ourselves be thoroughly convinced of its truth by the most serious examination.—“What! can christians doubt of their religion?”—The Mahometan entertains no doubt of his. Be ever ready to impart your knowledge,—simply and sincerely expose the principles of your belief to those who are desirous of hearing you: instruct them, convince them by evidence, but seek not to hurry them away with the fire of enthusiasm. It is a sufficient charge on each of us, to be responsible for his own conscience.—Thus neither will the light of knowledge be refused to any who wish to receive it, nor will a turbulent zeal disturb the peace of nations.

§62. What a sovereign may do in favour of those who profess his religion in another state.When a religion is persecuted in one country, foreign nations who profess it may intercede for their brethren: but this is all they can lawfully do, unless the persecution be carried to an intolerable excess: then indeed it becomes a case of manifest tyranny, in opposition to which all nations are allowed to assist an unhappy people (§56). A regard to their own safety may also authorise them to undertake the defence of the persecuted sufferers. A king of France replied to the ambassadors who solicited him to suffer his subjects of the reformed religion to live in peace, “that he was master in his own kingdom.” But the protestant sovereigns, who saw a general conspiracy of the catholics obstinately bent on their destruction, were so far masters on their side as to be at liberty to give assistance to a body of men who might strengthen their party, and help them to preserve themselves from the ruin with which they were threatened. All distinctions of states and nations are to be disregarded, when there is question of forming a coalition against a set of madmen, who would exterminate all those that do not implicitly receive their doctrines.

CHAPTER V

Of the Observance of Justice between Nations.

§63. Necessity of the observance of justice in human society.Justice is the basis of all society, the sure bond of all commerce. Human society, far from being an intercourse of assistance and good offices, would be no longer any thing but a vast scene of robbery, if no respect were paid to this virtue, which secures to every one his own. It is still more necessary between nations, than between individuals; because injustice produces more dreadful consequences in the quarrels of these powerful bodies politic, and it is more difficult to obtain redress. The obligation imposed on all men to be just is easily demonstrated from the law of nature. We here take that obligation for granted (as being sufficiently known), and content ourselves with observing, that it is not only indispensably binding on nations (Prelim. §5), but even still more sacred with respect to them, from the importance of its consequences.

§64. Obligation of all nations to cultivate and observe justice.All nations are therefore under a strict obligation to cultivate justice towards each other, to observe it scrupulously, and carefully to abstain from every thing that may violate it. Each ought to render to the others what belongs to them, to respect their rights, and to leave them in the peaceable enjoyment of them.

§65. Right of refusing to submit to injustice.From this indispensable obligation which nature imposes on nations, as well as from those obligations which each nation owes to herself, results the right of every state, not to suffer any of her rights to be taken away, or any thing which lawfully be-longs to her: for in opposing this, she only acts in conformity to all her duties; and therein consists the right (§49).

§66. This right is a perfect one.This right is a perfect one,—that is to say, it is accompanied with the right of using force in order to assert it. In vain would nature give us a right to refuse submitting to injustice,—in vain would she oblige others to be just in their dealings with us, if we could not lawfully make use of force, when they refused to discharge this duty. The just would lie at the mercy of avarice and injustice, and all their rights would soon become useless.

§67. It produces 1. The right of defence.From the foregoing right arise, as distinct branches, first, the right of a just defence, which belongs to every nation,—or the right of making use of force against whoever attacks her and her rights. This is the foundation of defensive war.

§68.2. The right of doing ourselves justice.Secondly, the right to obtain justice by force, if we cannot obtain it otherwise, or to pursue our right by force of arms. This is the foundation of offensive war.

§69. The right of punishing injustice.An intentional act of injustice is undoubtedly an injury. We have then a right to punish it, as we have shewn above, in speaking of injuries in general (§52). The right of refusing to suffer injustice is a branch of the right to security.

§70. Right of all nations against one that openly despises justice.Let us apply to the unjust what we have said above (§53) of a mischievous nation. If there were a people who made open profession of trampling justice under foot,—who despised and violated the rights of others whenever they found an opportunity,—the interest of human society would authorise all the other nations to form a confederacy in order to humble and chastise the delinquents. We do not here forget the maxim established in our Preliminaries, that it does not belong to nations to usurp the power of being judges of each other. In particular cases, where there is room for the smallest doubt, it ought to be supposed that each of the parties may have some right: and the injustice of the party that has committed the injury may proceed from error, and not from a general contempt of justice. But if, by her constant maxims, and by the whole tenor of her conduct, a nation evidently proves herself to be actuated by that mischievous disposition,—if she regards no right as sacred,—the safety of the human race requires that she should be repressed. To form and support an unjust pretension, is only doing an injury to the party whose interests are affected by that pretension; but to despise justice in general, is doing an injury to all nations.

CHAPTER VI

Of the Concern a Nation may have in the Actions of her Citizens.

§71. The sovereign ought to revenge the injuries of the state, and to protect the citizens.We have seen in the preceding chapters what are the common duties of nations towards each other,—how they ought mutually to respect each other, and to abstain from all injury, and all offence,—and how justice and equity ought to reign between them in their whole conduct. But hitherto we have only considered the actions of the body of the nation, of the state, of the sovereign. Private persons, who are members of one nation, may offend and ill-treat the citizens of another, and may injure a foreign sovereign:—it remains for us to examine, what share a state may have in the actions of her citizens, and what are the rights and obligations of sovereigns in this respect.

Whoever offends the state, injures its rights, disturbs its tranquillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and exposes himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is safety.

§72. He ought not to suffer his subjects to offend other nations or their citizens.But, on the other hand, the nation or the sovereign ought not to suffer the citizens to do an injury to the subjects of another state, much less to offend that state itself:—and this, not only because no sovereign ought to permit those who are under his command to violate the precepts of the law of nature, which forbids all injuries,—but also because nations ought mutually to respect each other, to abstain from all offence, from all injury, from all wrong,—in a word, from every thing that may be of prejudice to others. If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation, than if he injured it himself. In short, the safety of the state, and that of human society, requires this attention from every sovereign. If you let loose the reins to your subjects against foreign nations, these will behave in the same manner to you; and, instead of that friendly intercourse which nature has established between all men, we shall see nothing but one vast and dreadful scene of plunder between nation and nation.

§73. The acts of individuals are not to be imputed to the nation,However, as it is impossible for the best regulated state, or for the most vigilant and absolute sovereign, to model at his pleasure all the actions of his subjects, and to confine them on every occasion to the most exact obedience, it would be unjust to impute to the nation or the sovereign every fault committed by the citizens. We ought not then to say in general, that we have received an injury from a nation, because we have received it from one of its members.

§74.unless it approves or ratifies them.But if a nation or its chief approves and ratifies the act of the individual, it then becomes a public concern; and the injured party is to consider the nation as the real author of the injury, of which the citizen was perhaps only the instrument.

§75. Conduct to be observed by the offended party.If the offended state has in her power the individual who has done the injury, she may without scruple bring him to justice and punish him. If he has escaped and returned to his own country, she ought to apply to his sovereign to have justice done in the case.

§76. Duty of the aggressor’s sovereign.And since the latter ought not to suffer his subjects to molest the subjects of other states, or to do them an injury, much less to give open, audacious offence to foreign powers,—he ought to compel the transgressor to make reparation for the damage or injury, if possible, or to inflict on him an exemplary punishment, or, finally, according to the nature and circumstances of the case, to deliver him up to the offended state, to be there brought to justice. This is pretty generally observed with respect to great crimes, which are equally contrary to the laws and safety of all nations. Assassins, incendiaries, and robbers, are seized every where, at the desire of the sovereign in whose territories the crime was committed, and are delivered up to his justice. The matter is carried still farther in states that are more closely connected by friendship and good neighbourhood. Even in cases of ordinary transgressions which are only subjects of civil prosecution either with a view to the recovery of damages or the infliction of a slight civil punishment, the subjects of two neighbouring states are reciprocally obliged to appear before the magistrate of the place where they are accused of having failed in their duty. Upon a requisition of that magistrate, called Letters Rogatory, they are summoned in due form by their own magistrates, and obliged to appear. An admirable institution, by means of which many neighbouring states live together in peace, and seem to form only one republic! This is in force throughout all Switzerland. As soon as the Letters Rogatory are issued in form, the superior of the accused is bound to enforce them. It belongs not to him to examine whether the accusation be true or false; he is to presume on the justice of his neighbour, and not suffer any doubts on his own part to impair an institution so well calculated to preserve harmony and good understanding between the states: however, if by constant experience he should find that his subjects are oppressed by the neighbouring magistrates who summon them before their tribunals, it would undoubtedly be right in him to reflect on the protection due to his people, and to refuse the rogatories till satisfaction were given for the abuses committed, and proper steps taken to prevent a repetition of them. But in such case it would be his duty to allege his reasons, and set them forth in the clearest point of view.

§77. If he refuses justice, he becomes a party in the fault and offence.The sovereign who refuses to cause reparation to be made for the damage done by his subject, or to punish the offender, or, finally, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it. But if he delivers up either the property of the offender as an indemnification in cases that will admit of pecuniary compensation,—or his person, in order that he may suffer the punishment due to his crime,—the offended party has no further demand on him. King Demetrius having delivered to the Romans those who had killed their ambassador, the senate sent them back, resolving to reserve to themselves the liberty of punishing that crime by avenging it on the king himself, or on his dominions. If this was really the case, and if the king had no share in the murder of the Roman ambassador, the conduct of the senate was highly unjust, and only worthy of men who sought but a pretext to cover their ambitious enterprises.

§78. Another case in which the nation is guilty of the crimes of the citizens.Finally, there is another case where the nation in general is guilty of the crimes of its members. That is when by its manners and by the maxims of its government it accustoms and authorises its citizens indiscrim-inately to plunder and maltreat foreigners, to make inroads into the neighbouring countries, &c. Thus the nation of the Usbecks is guilty of all the robberies committed by the individuals of which it is composed. The princes whose subjects are robbed and massacred, and whose lands are infested by those robbers, may justly level their vengeance against the nation at large. Nay more, all nations have a right to enter into a league against such a people, to repress them, and to treat them as the common enemies of the human race. The christian nations would be no less justifiable in forming a confederacy against the states of Barbary, in order to destroy those haunts of pirates, with whom the love of plunder, or the fear of just punishment, is the only rule of peace and war. But these piratical adventurers are wise enough to respect those who are most able to chastise them; and the nations that are able to keep the avenues of a rich branch of commerce open for themselves, are not sorry to see them shut against others.

CHAPTER VII

Effects of the Domain, between Nations.

§79. General effect of the domain.We have explained in Chap. XVIII. Book I. how a nation takes possession of a country, and at the same time gains possession of the domain and government thereof. That country, with every thing included in it, becomes the property of the nation in general. Let us now see what are the effects of this property, with respect to other nations. The full domain is necessarily a peculiar and exclusive right: for if I have a full right to dispose of a thing as I please, it thence follows that others have no right to it at all, since, if they had any, I could not freely dispose of it. The private domain of the citizens may be limited and restrained in several ways by the laws of the state, and it always is so by the eminent domain of the sovereign; but the general domain of the nation is full and absolute, since there exists no authority upon earth by which it can be limited: it therefore excludes all 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 pretensions to the country which belongs to that nation, nor ought to dispose of it, without her consent, any more than of the things contained in the country.

§80. What is comprehended in the domain of a nation.The domain of the nation extends to every thing she possesses by a just title: it comprehends her ancient and original possessions and all her acquisitions made by means which are just in themselves, or admitted as such among nations,—concessions, purchases, conquests made in regular war, &c. And by her possessions, we ought not only to understand her territories, but all the rights she enjoys.

§81. The property of the citizens is the property of the nation, with respect to foreign nations.Even the property of the individuals is in the aggregate, to be considered as the property of the nation, with respect to other states. It, in some sort, really belongs to her from the right she has over the property of her citizens, because it constitutes a part of the sum total of her riches, and augments her power. She is interested in that property by her obligation to protect all her members. In short, it cannot be otherwise, since nations act and treat together as bodies, in their quality of political societies, and are considered as so many moral persons. All those who form a society, a nation, being considered by foreign nations as constituting only one whole, one single person,—all their wealth together can only be considered as the wealth of that same person. And this is 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.

§82.A consequence of this principle.By an immediate consequence of this principle, if one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation, until the debt be discharged. This maxim is of great use, as shall hereafter be shewn.

§83. Connection of the domain of the nation with the sovereignty.The general domain of the nation over the lands she inhabits is naturally connected with the empire: for in establishing herself in a vacant country, the nation certainly does not intend to possess it in subjection to any other power: and can we suppose an independent nation not vested with the absolute command in her domestic concerns? Thus we have already observed (Book I. §205) that in taking possession of a country the nation is presumed to take possession of its government at the same time. We shall here proceed farther, and shew the natural connection of these two rights in an independent nation. How could she govern herself at her own pleasure in the country she inhabits, if she cannot truly and absolutely dispose of it? And how could she have the full and absolute domain of a place where she has not the command? Another’s sovereignty, and the rights it comprehends, must deprive her of the free disposal of that place. Add to this the eminent domain which constitutes a part of the sovereignty (Book I. §244), and you will the better perceive the intimate connection existing between the domain and the sovereignty of the nation. And, accordingly, what is called the high domain, which is nothing but the domain of the body of the nation, or of the sovereign who represents it, is every where considered as inseparable from the sovereignty. The useful domain, or the domain confined to the rights that may belong to an individual in the state, may be separated from the sovereignty: and nothing prevents the possibility of its belonging to a nation, in places that are not under her jurisdiction. Thus many sovereigns have fiefs, and other possessions, in the territories of another prince: in these cases they possess them in the manner of private individuals.

§84. Jurisdiction.The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her sovereign, to exercise justice in all the places under her jurisdiction, to take cognisance of the crimes committed, and the differences that arise in the country.

Other nations ought to respect this right. And as the administration of justice necessarily requires that every definitive sentence, regularly pronounced, be esteemed just, and executed as such,—when once a cause in which foreigners are interested, has been decided in form, the sovereign of the defendants cannot hear their complaints. To undertake to examine the justice of a definitive sentence, is an attack on the jurisdiction of him who has passed it. The prince therefore ought not to interfere in the causes of his subjects in foreign countries, and grant them his protection, excepting in cases where justice is refused, or palpable and evident injustice done, or rules and forms openly violated, or, finally, an odious distinction made to the prejudice of his subjects, or of foreigners in general. The British court established this maxim, with great strength of evidence, on occasion of the Prussian vessels seized and declared lawful prizes during the last war. What is here said has no relation to the merits of that particular cause, since they must depend on facts.

§85. Effects of the jurisdiction in foreign countries.In consequence of these rights of jurisdiction, the decisions made by the judge of the place within the extent of his power, ought to be respected, and to take effect even in foreign countries. For instance, it belongs to the domestic judge to nominate tutors and guardians for minors and idiots. The law of nations, which has an eye to the common advantage and the good harmony of nations, requires therefore that such nomination of a tutor or guardian be valid and acknowledged in all countries where the pupil may have any concerns. Use was made of this maxim in the year 1672, even with respect to a sovereign. The abbé D’Orléans, sovereign prince of Neufchatel in Switzerland, being incapable of managing his own affairs, the king of France appointed, as his guardian, his mother, the duchess dowager of Longueville. The duchess of Nemours, sister to that prince, laid claim to the guardianship for the principality of Neufchatel: but the title of the duchess of Longueville was acknowledged by the three estates of the country. Her counsel rested her cause on the 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 degree of the three estates, who alone had a right to chuse a guardian for their sovereign, that the authority of the duchess of Longueville became firm and lawful at Neufchatel.

In the same manner the validity of a testament, as to its form, can only be decided by the domestic judge, whose sentence delivered in form ought to be every where acknowledged. But, without affecting the validity of the testament itself, the bequests contained in it may be disputed before the judge of the place where the effects are situated, because those effects can only be disposed of conformably to the laws of the country. Thus the abbé D’Orléans above mentioned having appointed the prince of Conti his universal legatee,—the three estates of Neufchatel, without waiting till the parliament of Paris should pronounce their decision on the question of two contradictory wills made by the abbé D’Orléans, gave the investiture of the principality to the duchess of Nemours,—declaring that the sovereignty was unalienable. Besides, it might have been said on this occasion also, that the domestic residence of the prince could be no where but in the state.

§86. Desert and uncultivated places.As every thing included in the country belongs to the nation,—and as none but the nation, or the person on whom she has devolved her right, is authorised to dispose of those things (§79),—if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her: she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property. It is, however, necessary to recollect here what we have observed above (Book I. §81). No nation can lawfully appropriate to herself a too disproportionate extent of country, and reduce other nations to want subsistence, and a place of abode. A German chief, in the time of Nero, said to the Romans, “As heaven belongs to the gods, so the earth is given to the human race; and desert countries are common to all,” —giving those proud conquerors to understand that they had no right to reserve and appropriate to themselves a country which they left desert. The Romans had laid waste a chain of country along the Rhine, to cover their provinces from the incursions of the barbarians. The German’s remonstrance would have had a good foundation, had the Romans pretended to keep without reason a vast country which was of no use to them: but those lands which they would not suffer to be inhabited, serving as a rampart against savage nations, were of considerable use to the empire.

§87. Duty of the nation in this respect.When there is not this singular circumstance, it is equally agreeable to the dictates of humanity, and to the particular advantage of the state, to give those desert tracts to foreigners who are willing to clear the land and to render it valuable. The beneficence of the state thus turns to her own advantage; she acquires new subjects, and augments her riches and power. This is the practice in America; and, by this wise method, the English have carried their settlements in the new world to a degree of power, which has considerably increased that of the nation. Thus also the king of Prussia endeavours to repeople his states laid waste by the calamities of former wars.

§88. Right of possessing things that have no owner.The nation that possesses a country is at liberty to leave in the primitive state of communion certain things that have as yet no owner, or to appropriate to herself the right of possessing those things, as well as every other advantage which that country is capable of affording. And as such a right is of use, it is, in case of doubt, presumed that the nation has reserved it to herself. It belongs to her then, to the exclusion of foreigners, unless her laws expressly declare otherwise, as those of the Romans, which left wild beasts, fish, &c. in the primitive state of communion. No foreigner, therefore, has a natural right to hunt or fish in the territories of a state, to appropriate to himself a treasure found there, &c.

§89. Rights granted to another nation.There exists no reason why a nation, or a sovereign if authorised by the laws, may not grant various privileges in their territories to another nation, or to foreigners in general, since every one may dispose of his own property as he thinks fit. Thus several sovereigns in the Indies have granted to the trading nations of Europe the privilege of having factories, ports, and even fortresses and garrisons in certain places within their dominions. We may in the same manner grant the right of fishing in a river, or on the coast, that of hunting in the forests, &c. and when once these rights have been validly ceded, they constitute a part of the possessions of him who has acquired them, and ought to be respected in the same manner as his former possessions.

§90. It is not allowable to drive a nation out of a country which it inhabits;Whoever agrees that robbery is a crime, and that we are not allowed to take forcible possession of our neighbour’s property, will acknowledge, without any other proof, that no nation has a right to expel another people from the country they inhabit, in order to settle in it herself. Notwithstanding the extreme inequality of climates and soils, every people ought to be contented with that which has fallen to their share. Will the conductors of nations despise a rule that constitutes all their safety in civil society? Let this sacred rule be entirely forgotten, and the peasant will quit his thatched cottage to invade the palaces of the great, or the delightful possessions of the rich. The antient Helvetians, discontented with their native soil, burned all their habitations, and commenced their march, in order to establish themselves, sword in hand, in the fertile plains of southern Gaul. But they received a terrible lesson from a conqueror of superior abilities to themselves, and who paid still less regard to the laws of justice. Caesar 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 counter-balances the sterility of the soil.

§91.nor to extend by violence the bounds of empire.There are conquerors, who, aspiring after nothing more than the extension of the boundaries of their dominions, without expelling the inhabitants from a country, content themselves with subduing them;—a violence less barbarous, but not less unjust: while they spare the property of individuals, they seize all the rights of the nation, and of the sovereign.

§92. The limits of territories ought to be carefully settled.Since the least encroachment on the territory of another is an act of injustice,—in order to avoid the commission of any such act, and to prevent every subject of discord, every occasion of quarrel, the limits of territories ought to be marked out with clearness and precision. If those who drew up the treaty of Utrecht had bestowed on so important a subject all the attention it deserved, we should not see France and England in arms, in order to decide by a bloody war what are to be the boundaries of their possessions in America. But the makers of treaties often designedly leave in them some obscurity, some uncertainty, in order to reserve for their nation a pretext for a rupture:—an unworthy artifice in a transaction wherein good-faith alone ought to preside! We have also seen commissioners endeavouring to overreach or corrupt those of a neighbouring state, in order to gain for their master an unjust acquisition of a few leagues of territory. How can princes or ministers stoop to dirty tricks that would dishonour a private man?

§93. Violation of territory.We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign: for a foreign nation can claim no right in it (§79). We cannot then, without doing an injury to a state, enter its territories with force and arms in pursuit of a criminal, and take him from thence. This would at once be a violation of the safety of the state, and a trespass on the rights of empire or supreme authority vested in the sovereign. This is what is called a violation of territory; and among nations there is nothing more generally acknowledged as an injury that ought to be vigorously repelled by every state that would not suffer itself to be oppressed. We shall make use of this principle in speaking of war, which gives occasion for many questions on the rights of territory.

§94. Prohibition to enter the territory.The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country. Formerly the Chinese, fearing lest the intercourse of strangers should corrupt the manners of the nation, and impair the maxims of a wise but singular government, forbade all people entering the empire: a prohibition that was not at all inconsistent with justice, provided they did not refuse humane assistance to those whom tempest or necessity obliged to approach their frontiers. It was salutary to the nation, without violating the rights of any individual, or even the duties of humanity, which permit us, in case of competition, to prefer ourselves to others.

§95.A country possessed by several nations at the same time.If at the same time two or more nations discover and take possession of an island or any other desert land without an owner, they ought to agree between themselves, and make an equitable partition; but if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled.

§96.A country possessed by a private person.An independent individual, whether he has been driven from his country, or has legally quitted it of his own accord, may settle in a country which he finds without an owner, and there possess an independent domain. Whoever would afterwards make himself master of the entire country, could not do it with justice without respecting the rights and independence of this person. But if he himself finds a sufficient number of men who are willing to live under his laws, he may form a new state within the country he has discovered, and possess there both the domain and the empire. But if this individual should arrogate to himself alone an exclusive right to a country, there to reign monarch without subjects, his vain pretensions would be justly held in contempt:—a rash and ridiculous possession can produce no real right.

There are also other means by which a private person may found a new state. Thus, in the eleventh century, some Norman noblemen founded a new empire in Sicily, after having wrested that island by conquest from the common enemies of the christian name. The custom of the nation permitted the citizens to quit their country, in order to seek their fortune elsewhere.

§97. Independent families in a country.When several independent families are settled in a country, they possess the free domain, but without sovereignty, since they do not form a political society. Nobody can seize the empire of that country; since this would be reducing those families to subjection against their will; and no man has a right to command men who are born free, unless they voluntarily submit to him.

If those families have fixed settlements, the place possessed by each is the peculiar property of that family: the rest of the country, of which they make no use, being left in the primitive state of communion, belongs to the first occupant. Whoever chooses to settle there, may lawfully take possession of it.

Families wandering in a country, as the nations of shepherds, and ranging through it as their wants require, possess it in common: it belongs to them, to the exclusion of all other nations; and we cannot without injustice deprive them of the tracts of country of which they make use. But let us here recollect what we have said more than once (Book I. §§81 and 209, Book II. §69). The savages of North America had no right to appropriate all that vast continent to themselves: and since they were unable to inhabit the whole of those regions, other nations might without injustice settle in some parts of them, provided they left the natives a sufficiency of land. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them. Nevertheless, no other nation has a right to narrow their boundaries, unless she be under an absolute want of land. For, in short, they possess their country; they make use of it after their manner; they reap from it an advantage suitable to their manner of life, respecting which, they have no laws to receive from any one. In a case of pressing necessity, I think people might without injustice settle in a part of that country, on teaching the Arabs the means of rendering it, by the cultivation of the earth, sufficient for their own wants and those of the new inhabitants.

§98. Possession of certain places only, or of certain rights, in a vacant country.It may happen that a nation is contented with possessing only certain places, or appropriating to itself certain rights, in a country that has not an owner,—without being solicitous to take possession of the whole country. In this case, another nation may take possession of what the first has neglected; but this cannot be done without allowing all the rights acquired by the first to subsist in their full and absolute independence. In such cases it is proper that regulations should be made by treaty; and this precaution is seldom neglected among civilised nations.

CHAPTER VIII

Rules with respect to Foreigners.

§99. General idea of the conduct the state ought to observe towards foreigners.We have already treated (Book I. §213) of the inhabitants, or persons who reside in a country where they are not citizens. We shall here treat only of those foreigners who pass through or sojourn in a country, either on business, or merely as travellers. The relation that subsists between them and the society in which they now live,—the objects of their journey and of their temporary residence,—the duties of humanity,—the rights, the interest, and the safety of the state which harbours them,—the rights of that to which they belong,—all these prin-ciples, combined and applied according to cases and circumstances, serve to determine the conduct that ought to be observed towards them, and to point out our right and our duty with respect to them. But the intention of this chapter is not so much to shew what humanity and justice require towards foreigners, as to establish the rules of the law of nations on this subject,—rules tending to secure the rights of all parties, and to prevent the repose of nations being disturbed by the quarrels of individuals.

§100. Entering the territory.Since the lord of the territory may, whenever he thinks proper, forbid its being entered (§94), he has no doubt a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain. Can it be necessary to add, that the owner of the territory ought in this instance to respect the duties of humanity? The case is the same with all rights whatever: the proprietor may use them at his discretion; and, in so doing, he does not injure any person: but if he would be free from guilt, and keep his conscience pure, he will never use them but in such manner as is most conformable to his duty. We speak here in general of the rights which belong to the lord of the country, reserving for the following chapter the examination of the cases in which he cannot refuse an entrance into his territory; and we shall see in Chap. X. how his duty towards all mankind obliges him on other occasions to allow a free passage through, and a residence in, his state.

If the sovereign annexes any particular condition to the permission to enter his territories, he ought to have measures taken to make foreigners acquainted with it, when they present themselves on the frontier. There are states, such as China, and Japan, into which all foreigners are forbid to penetrate without an express permission: but in Europe the access is every where free to every person who is not an enemy of the state, except, in some countries, to vagabonds and outcasts.

§101. Foreigners are subject to the laws.But even in those countries which every foreigner may freely enter, the sovereign is supposed to allow him access only upon this tacit condition, that he be subject to the laws,—I mean the general laws made to maintain good order, and which have no relation to the title of citizen, or of subject of the state. The public safety, the rights of the nation and of the prince, necessarily require this condition; and the foreigner tacitly submits to it, as soon as he enters the country, as he cannot presume that he has access upon any other footing. The sovereignty is the right to command in the whole country; and the laws are not simply confined to regulating the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state.

§102. And punishable according to the laws.In virtue of this submission, foreigners who commit faults, are to be punished according to the laws of the country. The object of punishment is to cause the laws to be respected, and to maintain order and safety.

§103. Who is the judge of their disputes.For the same reason, disputes that may arise between foreigners, or between a foreigner and a citizen, are to be determined by the judge of the place, and according to the laws of the place. And as the dispute properly arises from the refusal of the defendant, who maintains that he is not bound to perform what is required of him, it follows from the same principle, that every defendant ought to be prosecuted before his own judge, who alone has a right to condemn him, and compel him to the performance. The Swiss have wisely made this rule one of the articles of their alliance, in order to prevent the quarrels that might arise from abuses that were formerly too frequent in relation to this subject. The defendant’s judge is the judge of the place where that defendant has his settled abode, or the judge of the place where the defendant is, when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In this last case, as property of that kind is to be held according to the laws of the country where it is situated, and as the right of granting possession is vested in the ruler of the country,—disputes relating to such property can only be decided in the state on which it depends.

We have already shewn (§84) how the jurisdiction of a nation ought to be respected by other sovereigns, and in what cases alone they may interfere in the causes of their subjects in foreign countries.

§104. Protection due to foreigners.The sovereign ought not to grant an entrance into his state for the purpose of drawing foreigners into a snare: as soon as he admits them, he engages to protect them as his own subjects, and to afford them perfect security, as far as depends on him. Accordingly we see that every sovereign who has given an asylum to a foreigner, considers himself no less offended by an injury done to the latter, than he would be by an act of violence committed on his own subject. Hospitality was in great honour among the ancients, and even among barbarous nations, such as the Germans. Those savage nations who treated strangers ill, that Scythian tribe who sacrificed them to Diana, were universally held in abhorrence; and Grotius justly says that their extreme ferocity excluded them from the great society of mankind. All other nations had a right to unite their forces in order to chastise them.

§105. Their duties.From a sense of gratitude for the protection granted to him, and the other advantages he enjoys, the foreigner ought not to content himself with barely respecting the laws of the country; he ought to assist it upon occasion, and contribute to its defence, as far as is consistent with his duty as citizen of another state. We shall see elsewhere what he can and ought to do, when the country is engaged in a war. But there is nothing to hinder him from defending it against pirates or robbers, against the ravages of an inundation, or the devastations of fire. Can he pretend to live under the protection of a state, to participate in a variety of advantages that it affords, and yet make no exertion for its defence, but remain an unconcerned spectator of the dangers to which the citizens are exposed?

§106. To what burdens they are subject.He cannot indeed be subject to those burdens that have only a relation to the quality of citizens; but he ought to bear his share of all the others. Being exempted from serving in the militia, and from paying those taxes destined for the support of the rights of the nation, he will pay the duties imposed upon provisions, merchandise, &c. and, in a word, every thing that has only a relation to his residence in the country, or to the affairs which brought him thither.

§107. Foreigners continue members of their own nation.The citizen or the subject of a state who absents himself for a time without any intention to abandon the society of which he is a member, does not lose his privilege by his absence: he preserves his rights, and remains bound by the same obligations. Being received in a foreign country, in virtue of the natural society, the communication, and commerce, which nations are obliged to cultivate with each other (Prelim. §§11 and 12; Book II. §21), he ought to be considered there as a member of his own nation, and treated as such.

§108. The state has no right over the person of a foreigner;The state, which ought to respect the rights of other nations, and in general those of all mankind, cannot arrogate to herself any power over the person of a foreigner, who, though he has entered her territory, has not become her subject. The foreigner cannot pretend to enjoy the liberty of living in the country without respecting the laws: if he violates them, he is punishable as a disturber of the public peace, and guilty of a crime against the society in which he lives: but he is not obliged to submit, like the subjects, to all the commands of the sovereign: and if such things are required of him as he is unwilling to perform, he may quit the country. He is free at all times to leave it; nor have we a right to detain him, except for a time, and for very particular reasons, as, for instance, an apprehension, in war time, lest such foreigner, acquainted with the state of the country and of the fortified places, should communicate his knowledge to the enemy. From the voyages of the Dutch to the East Indies, we learn that the kings of Corea forcibly detain foreigners who are ship-wrecked on their coast; and Bodinus assures us, that a custom so contrary to the law of nations was practised in his time in Aethiopia, and even in Muscovy. This is at once a violation of the rights of individuals, and of those of the state to which they belong. Things have been greatly changed in Russia; a single reign—that of Peter the Great—has placed that vast empire in the rank of civilised nations.

§109.nor over his property.The property of an individual does not cease to belong to him on account of his being in a foreign country; it still constitutes a part of the aggregate wealth of his nation (§81). Any power, therefore, which the lord of the territory might claim over the property of a foreigner, would be equally derogatory to the rights of the individual owner, and to those of the nation of which he is a member.

§110. Who are the heirs of a foreigner.Since the foreigner still continues to be a citizen of his own country, and a member of his own nation (§107), the property he leaves at his death in a foreign country ought naturally to devolve to those who are his heirs according to the laws of the state of which he is a member. But, notwithstanding this general rule, his immovable effects are to be disposed of according to the laws of the country where they are situated (see §103).

§111. Will of a foreigner.As the right of making a will, or of disposing of his fortune in case of death, is a right resulting from property, it cannot, without injustice, be taken from a foreigner. The foreigner therefore, by natural right, has the liberty of making a will. But it is asked by what laws he is obliged to regulate himself either in the form of his testament or in the disposal of his property? 1. As to the form or solemnities appointed to settle the validity of a will, it appears that the testator ought to observe those that are established in the country where he makes it, unless it be otherwise ordained by the laws of the state of which he is a member; in which case he will be obliged to observe the forms which they prescribe, if he would validly dispose of the property he possesses in his own country. I speak here of a will which is to be opened in the place where the person dies: for if a traveller makes his will, and sends it home under seal, it is the same thing as if it had been written at home; and in this case it is subject to the laws of his own country. 2. As to the bequests themselves, we have already observed that those which relate to immovables ought to be conformable to the laws of the country where those immovables are situated. The foreign testator cannot dispose of the goods, movable or immovable, which he possesses in his own country, otherwise than in a manner conformable to the laws of that country. But as to movable goods, specie, and other effects which he possesses elsewhere, which he has with him, or which follow his person, we ought to distinguish between the local laws whose effect cannot extend beyond the territory, and those laws which peculiarly affect the character of citizen. The foreigner remaining a citizen of his own country, is still bound by those last-mentioned laws, wherever he happens to be, and is obliged to conform to them in the disposal of his personal property, and all his movables whatsoever. The laws of this kind made in the country where he resides at the time, but of which he is not a citizen, are not obligatory with respect to him. Thus, a man who makes his will and dies in a foreign country, cannot deprive his widow of the part of his movable effects assigned to that widow by the laws of his own country. A Genevan, obliged by the law of Geneva to leave a dividend of his personal property to his brothers or his cousins, if they be his next heirs, cannot deprive them of it by making his will in a foreign country, while he continues a citizen of Geneva: but a foreigner dying at Geneva is not obliged, in this respect, to conform to the laws of the republic. The case is quite otherwise with respect to local laws: they regulate what may be done in the territory, and do not extend beyond it. The testator is no longer subject to them when he is out of the territory; and they do not affect that part of his property which is also out of it. The foreigner is obliged to observe those laws in the country where he makes his will, with respect to the goods he possesses there. Thus, an inhabitant of Neufchatel, to whom entails are forbidden in his own country with respect to the property he possesses there, freely makes an entail of the estate he possesses out of the jurisdiction of the country, if he dies in a place where entails are allowed; and a foreigner making a will at Neufchatel cannot make an entail of even the movable property he possesses there,—unless indeed we may suppose that his movable property is excepted by the spirit of the law.

§112. Escheatage.What we have established in the three preceding sections is sufficient to shew with how little justice the crown, in some states, lays claim to the effects left there by a foreigner at his death. This practice is founded on what is called Escheatage, by which foreigners are excluded from all inheritances in the state, either of the property of a citizen or that of an alien, and consequently cannot be appointed heirs by will, nor receive any legacy. Grotius justly observes that this law has descended to us from those ages when foreigners were almost considered as enemies. Even after the Romans were become a very polite and learned people, they could not accustom themselves to consider foreigners as men entitled to any right in common with them. “Those nations,” says Pomponius the civilian, “with whom we have neither friendship, nor hospitality, nor alliance, are not therefore our enemies: yet if any thing belonging to us falls into their hands, it becomes their property; our free citizens become slaves to them: and they are on the same terms with respect to us.” We cannot suppose that so wise a people retained such inhuman laws with any other view than that of a necessary retaliation, as they could not otherwise obtain satisfaction from barbarous nations with whom they had no connection or treaties existing. Bodinus shews that Escheatage is derived from these worthy sources! It has been successively mitigated, or even abolished in most civilised states. The emperor Frederic II. first abolished it by an edict, which permitted all foreigners dying within the limits of the empire to dispose of their substance by will, or, if they died intestate, to have their nearest relations for heirs. But Bodinus complains that this edict is but ill executed. Why does there still remain any vestige of so barbarous a law in Europe, which is now so enlightened and so full of humanity? The law of nature cannot suffer it to be put in practice, except by way of retaliation. This is the use made of it by the king of Poland in his hereditary states. Escheatage is established in Saxony: but the sovereign is so just and equitable, that he enforces it only against those nations which subject the Saxons to a similar law.

§113. The right of traite foraine.The right of traite foraine (called in Latin jus detractûs) is more conformable to justice, and the mutual obligation of nations. We give this name to the right by virtue of which the sovereign retains a moderate portion of the property either of citizens or aliens which is sent out of his territories to pass into the hands of foreigners. As the exportation of that property is a loss to the state, she may fairly receive an equitable compensation for it.

§114. Immovable property possessed by an alien.Every state has the liberty of granting or refusing to foreigners the power of possessing lands or other immovable property within her territory. If she grants them that privilege, all such property, possessed by aliens, remains subject to the jurisdiction and laws of the country, and to the same taxes as other property of the same kind. The authority of the sovereign extends over the whole territory; and it would be absurd to except some parts of it, on account of their being possessed by foreigners. If the sovereign does not permit aliens to possess immovable property, nobody has a right to complain of such prohibition; for he may have very good reasons for acting in this manner: and as foreigners cannot claim any right in his territories (§79), they ought not to take it amiss that he makes use of his power and of his rights in the manner which he thinks most for the advantage of the state. And as the sovereign may refuse to foreigners the privilege of possessing immovable property, he is doubtless at liberty to forbear granting it except with certain conditions annexed.

§115. Marriages of aliens.There exists no natural impediment to prevent foreigners from contracting marriages in the state. But if these marriages are found prejudicial or dangerous to a nation, she has a right, and is even in duty bound to prohibit them, or to subject to certain conditions the permission to contract them: and as it belongs to the nation or to her sovereign to determine what appears most conducive to the welfare of the state, other nations ought to acquiesce in the regulations which any sovereign state has made on this head. Citizens are almost every-where forbid to marry foreign wives of a different religion; and in many parts of Switzerland a citizen cannot marry a foreign woman, unless he prove that she brings him in marriage a certain sum fixed by the law.

CHAPTER IX

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

§116. What are the rights of which men cannot be deprived.If an obligation, as we have before observed, gives a right to those things without which it cannot be fulfilled, every absolute, necessary, and indispensable obligation produces in this manner rights equally absolute, necessary, and indefeasible. Nature imposes no obligations on men, without giving them the means of fulfilling them. They have an absolute right to the necessary use of those means: nothing can deprive them of that right, as nothing can dispense with their fulfilling their natural obligations.

§117. Right still remaining from the primitive state of communion.In the primitive state of communion, men had, without distinction, a right to the use of every thing, as far as was necessary to the discharge of their natural obligations. And as nothing could deprive them of this right, the introduction of domain and property could not take place without leaving to every man the necessary use of things,—that is to say, the use absolutely required for the fulfilment of his natural obligations. We cannot then suppose the introduction to have taken place without this tacit restriction, that every man should still preserve some right to the things subjected to property, in those cases, where, without this right, he would remain absolutely deprived of the necessary use of things of this nature. This right is a necessary remnant of the primitive state of communion.

§118. Right retained by each nation over the property others.Notwithstanding the domain of nations, therefore, each nation still retains some right to what is possessed by others, in those cases where she would find herself deprived of the necessary use of certain things if she were to be absolutely debarred from using them by the consideration of their being other people’s property. We ought carefully to weigh every circumstance in order to make a just application of this principle.

§119. Right of necessity.I say the same of the right of necessity. We thus call the right which necessity alone gives to the performance of certain actions that are otherwise unlawful, when, without these actions, it is impossible to fulfil an indispensable obligation. But it is carefully to be noted, that, in such a case, the obligation must really be an indispensable one, and the act in question the only means of fulfilling that obligation. If either of these conditions be wanting, the right of necessity does not exist on the occasion. We may see these subjects discussed in treatises on the law of nature, and particularly in that of Mr. Wolf. I confine myself here to a brief summary of those principles whose aid is necessary to us in developing the rights of nations.

§120. Right of procuring provisions by force.The earth was designed to feed its inhabitants; and he who is in want of every thing is not obliged to starve because all property is vested in others. When, therefore, a nation is in absolute want of provisions, she may compel her neighbours, who have more than they want for themselves, to supply her with a share of them at a fair price: she may even take it by force, if they will not sell it. Extreme necessity revives the primitive communion, the abolition of which ought to deprive no person of the necessaries of life (§117). The same right belongs to individuals when a foreign nation refuses them a just assistance. Captain Bontekoe, a Dutchman, having lost his vessel at sea, escaped in his boat with a part of his crew, and landed on an Indian coast, where the barbarous inhabitants refusing him provisions, the Dutch obtained them sword in hand.

§121. Right of making use of the things that belong to others.In the same manner, if a nation has a pressing want of the ships, waggons, horses, or even the personal labour of foreigners, she may make use of them either by free consent or by force, provided that the proprietors be not under the same necessity. But as she has no more right to these things than necessity gives her, she ought to pay for the use she makes of them, if she has the means of paying. The practice of Europe is conformable to this maxim. In cases of necessity, a nation sometimes presses foreign vessels which happen to be in her ports; but she pays a compensation for the services performed by them.

§122. Right of carrying off women.Let us say a few words on a more singular case, since authors have treated of it,—a case in which at present people are never reduced to employ force. A nation cannot preserve and perpetuate itself except by propagation. A nation of men has therefore a right to procure women, who are absolutely necessary to its preservation: and if its neighbours, who have a redundancy of females, refuse to give some of them in marriage to those men, the latter may justly have recourse to force. We have a famous example of this in the rape of the Sabine women. But though a nation is allowed to procure for itself, even by force of arms, the liberty of obtaining women in marriage, no woman in particular can be constrained in her choice, nor become, by right, the wife of a man who carries her off by force;—a circumstance which has not been attended to by those who have decided, without restriction, that the Romans did not commit an act of injustice on that occasion. 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 ardor with which those women rushed between the combatants, that they willingly acknowledged the Romans for their lawful husbands.

We may further add, that if the Romans, as many pretend, were originally only a band of robbers united under Romulus, they did not form a true nation, or a legitimate state: the neighbour-ing nations had a just right to refuse them women; and the law of nature, which approves no civil society but such as is legitimate, did not require them to furnish that society of vagabonds and robbers with the means of perpetuating itself: much less did it authorise the latter to procure those means by force. In the same manner, no nation was obliged to furnish the Amazons with males. That nation of women, if it ever existed, put itself, by its own fault, out of a condition to support itself without foreign assistance.

§123. Right of passage;The right of passage is also a remnant of the primitive state of communion, in which the entire earth was common to all mankind, and the passage was every-where free to each individual according to his necessities. Nobody can be entirely deprived of this right (§117); but the exercise of it is limited by the introduction of domain and property: since they have been introduced, we cannot exert that right without paying due regard to the private rights of others. The effect of property is to give the proprietor’s advantage a preference over that of all others. When, therefore, the owner of a territory thinks proper to refuse you admission into it, you must, in order to enter it in spite of him, have some reason more cogent than all his reasons to the contrary. Such is the right of necessity: this authorises an act on your part, which on other occasions would be unlawful, viz. an infringement of the right of domain. When a real necessity obliges you to enter into the territory of others,—for instance, if you cannot otherwise escape from imminent danger, or if you have no other passage for procuring the means of subsistence, or those of satisfying some other indispensable obligation,—you may force a passage when it is unjustly refused. But if an equal necessity obliges the proprietor to refuse you entrance, he refuses it justly; and his right is paramount to yours. Thus a vessel driven by stress of weather has a right to enter, even by force, into a foreign port. But if that vessel is infected with the plague, the owner of the port may fire upon it and beat it off, without any violation either of justice, or even of charity, which, in such a case, ought doubtless to begin at home.

§124.and of procuring necessaries.The right of passage through a country would in most cases be useless, without that of procuring necessaries at a fair price: and we have already shewn (§120) that in case of necessity it is lawful to take provisions even by force.

§125. Right of dwelling in a foreign country.In speaking of exile and banishment, we have observed (Book I. §§229–231) that every man has a right to dwell some-where upon earth. What we have shewn with respect to individuals, may be applied to whole nations. If a people are driven from the place of their abode, they have a right to seek a retreat: the nation to which they make application ought then to grant them a place of habitation, at least for a time, if she has not very important reasons for a refusal. But if the country inhabited by this nation is scarcely sufficient for herself, she is under no obligation to allow a band of foreigners to settle in it for ever: she may even dismiss them at once, if it be not convenient to her to grant them a permanent settlement. As they have the resource of seeking an establishment elsewhere, they cannot claim any authority from the right of necessity, to stay in spite of the owners of the country. But it is necessary, in short, that these fugitives should find a retreat; and if every body rejects them, they will be justifiable in making a settlement in the first country where they find land enough for themselves, without depriving the inhabitants of what is sufficient for them. But, even in this case, their necessity gives them only the right of habitation; and they are bound to submit to all the conditions, not absolutely intolerable, which may be imposed on them by the master of the country,—such as paying him tribute, becoming his subjects, or at least living under his protection, and, in certain respects, depending on him. This right, as well as the two preceding, is a remnant of the primitive state of communion.

§126. Things, of which the use is inexhaustible.We have been occasionally obliged to anticipate the subject of the present chapter in order to follow the order of the different subjects that presented themselves. Thus, in speaking of the open sea, we have remarked (Book I. §281) that those things, the use of which is inexhaustible, cannot fall under the domain or property of any one; because, in that free and independent state in which nature has produced them, they may be equally useful to all men. And as to those things even, which in other respects are subject to domain,—if their use is inexhaustible, they remain common with respect to that use. Thus a river may be subject both to domain and empire; but in quality of running water it remains common,—that is to say, the owner of the river cannot hinder any one from drinking and drawing water out of it. Thus the sea, even in those parts that are held in possession, being sufficient for the navigation of all mankind, he who has the domain cannot refuse a passage through it to any vessel from which he has nothing to fear. But it may happen, by accident, that this inexhaustible use of the thing may be justly refused by the owner, when people cannot take advantage of it without incommoding him or doing him a prejudice. For instance, if you cannot come to my river for water without passing over my land and damaging the crop it bears, I may for that reason debar you from the inexhaustible use of the running water: in which case, it is but through accident you are deprived of it. This leads us to speak of another right which has a great connection with that just mentioned, and is even derived from it; that is the right of innocent use.

§127. Right of innocent use.We call innocent use, or innocent advantage, that which may be derived from a thing without causing either loss or inconvenience to the proprietor; and the right of innocent use is the right we have to that advantage or use which may be made of things belonging to another, without causing him either loss or inconvenience. I have said that this right is derived from the right to things of which the use is inexhaustible. In fact, a thing that may be useful to any one without loss or inconvenience to the owner, is, in this respect, inexhaustible in the use; and that is the reason why the law of nature still allows all men a right to it notwithstanding the introduction of domain and property. Nature, who designs her gifts for the common advantage of mankind, does not allow us to prevent the application of those gifts to an useful purpose which they may be made to serve without any prejudice to the proprietor, and without any diminution of the utility and advantages he is capable of deriving from his rights.

§128. Nature of this right in general;This right of innocent use is not a perfect right like that of necessity; for it belongs to the owner to judge whether the use we wish to make of a thing that belongs to him will not be attended with damage or inconvenience. If others should presume to decide on the occasion, and, in case of refusal, to compel the proprietor, he would be no longer master of his own property. It may frequently happen that the person who wishes to derive advantage from a thing shall deem the use of it perfectly innocent, though it is not so in fact: and if, in such case, he attempts to force the proprietor, he exposes himself to the risk of committing an act of injustice; nay he actually commits one, since he infringes the owner’s right to judge of what is proper to be done on the occasion. In all cases, therefore, which admit of any doubt, we have only an imperfect right to the innocent use of things that belong to others.

§129.and in cases not doubtful.But when the innocence of the use is evident, and absolutely indubitable, the refusal is an injury. For, in addition to a manifest violation of the rights of the party by whom that innocent use is required, such refusal is moreover a testimony of an injurious disposition of hatred or contempt for him. To refuse a merchant-ship the liberty of passing through a strait, to fishermen that of drying their nets on the sea-shore or of watering at a river, is an evident infringement of the right they have to the innocent use of things in those cases. But in every case, if we are not pressed by necessity, we may ask the owner his reasons for the refusal; and if he gives none, we may consider him as an unjust man, or an enemy, with whom we are to act according to the rules of prudence. In general we should regulate our sentiments and conduct towards him, according to the greater or lesser weight of the reasons on which he acts.

§130. Exercise of this right between nations.All nations do therefore still retain a general right to the innocent use of things that are under the domain of any one individual nation. But, in the particular application of this right, it is the nation in whom the property is vested, that is to determine whether the use which others wish to make of what belongs to her be really innocent: and if she gives them a denial, she ought to allege her reasons; as she must not deprive others of their right from mere caprice. All this is founded in justice: for it must be remembered that the innocent use of things is not comprehended in the domain or the exclusive property. The do-main gives only the right of judging, in particular cases, whether the use be really innocent. Now he who judges ought to have his reasons; and he should mention them, if he would have us think that he forms any judgment, and not that he acts from caprice or ill-nature. All this, I say, is founded in justice. In the next chapter we shall see the line of conduct which a nation is, by her duty to other nations, bound to observe in the exercise of her rights.

CHAPTER X

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

§131. General duty of the proprietor.Since the law of nations treats as well of the duties of states as of their rights, it is not sufficient that we have explained, on the subject of innocent use, what all nations have a right to require from the proprietor: we are now to consider what influence his duties to others ought to have on the proprietor’s conduct. As it belongs to him to judge whether the use be really innocent, and not productive of any detriment or inconvenience to himself, he ought not to give a refusal unless it be grounded upon real and substantial reasons: this is a maxim of equity: he ought not even to stop at trifles,—a slight loss, or any little inconvenience: humanity forbids this; and the mutual love which men owe to each other, requires greater sacrifices. It would certainly be too great a deviation from that universal benevolence which ought to unite the human race, to refuse a considerable advantage to an individual, or to a whole nation, whenever the grant of it might happen to be productive of the most trifling loss or the slightest inconvenience to ourselves. In this respect, therefore, a nation ought on all occasions to regulate her conduct by reasons proportioned to the advantages and necessities of others, and to reckon as nothing a small expense or a supportable inconvenience, when great good will thence result to another nation. But she is under no obligation to incur heavy expenses or embarrassments, for the sake of furnishing others with the use of any thing, when such use is neither necessary nor of any great utility to them. The sacrifice we here require is not contrary to the interests of the nation:—it is natural to think that the others will behave in the same manner in return; and how great the advantages that will result to all states from such a line of conduct!

§132. Innocent passage.The introduction of property cannot be supposed to have deprived nations of the general right of traversing the earth for the purposes of mutual intercourse, of carrying on commerce with each other, and for other just reasons. It is only on particular occasions when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. And he cannot lawfully annex burthensome conditions to a permission which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property. The count of Lupfen having improperly stopped some merchandise in Alsace, and complaints being made on the subject to the emperor Sigismund who was then at the council of Constance, that prince assembled the electors, princes, and deputies of towns, to examine the affair. The opinion of the burgrave of Nuremberg deserves to be mentioned: “God,” said he, “has created heaven for himself and his saints, and has given the earth to mankind, intending it for the advantage of the poor as well as of the rich. The roads are for their use, and God has not subjected them to any taxes.” He condemned the count of Lupfen to restore the merchandise, and to pay costs and damages, because he could not justify his seizure by any peculiar right. The emperor approved this opinion, and passed sentence accordingly.

§133. Sureties may be required.But if any apprehension of danger arise from the grant of liberty to pass through a country, the state has a right to require sureties: the party who wishes to pass cannot refuse them, a passage being only so far due to him as it is attended with no inconvenience.

§134. Passage of merchandise.In like manner, a passage ought also to be granted for merchandise: and as this is in general productive of no inconvenience, to refuse it without just reason, is injuring a nation, and endeavouring to deprive her of the means of carrying on a trade with other states. If this passage occasions any inconvenience, any expense for the preservation of canals and highways, we may exact a compensation for it by toll duties (Book I. §103).

§135. Residence in the country.In explaining the effects of domain we have said above (§§64 and 100) that the owner of the territory may forbid the entrance into it, or permit it on such conditions as he thinks proper. We were then treating of his external right,—that right which foreigners are bound to respect. But now that we are considering the matter in another view, and as it relates to his duties and to his internal right, we may venture to assert that he cannot, without particular and important reasons, refuse permission, either to pass through or reside in the country, to foreigners who desire it for lawful purposes. For, their passage or their residence being in this case an innocent advantage, the law of nature does not give him a right to refuse it: and though other nations and other men in general are obliged to submit to his judgment (§§128 and 130), he does not the less offend against his duty, if he refuses without sufficient reason: he then acts without any true right; he only abuses his external right. He cannot therefore, without some particular and cogent reason, refuse the liberty of residence to a foreigner who comes into the country with the hope of recovering his health, or for the sake of acquiring instruction in the schools and academies. A difference in religion is not a sufficient reason to exclude him, provided he do not engage in controversial disputes with a view to disseminate his tenets: for that difference does not deprive him of the rights of humanity.

§136. How we are to act towards foreigners who desire a perpetual residence.We have seen (§125) how the right of necessity may in certain cases authorise a people, who are driven from the place of their residence, to settle in the territory of another nation. Every state ought, doubtless, to grant to so unfortunate a people every aid and assistance which she can bestow without being wanting to herself: but to grant them an establishment in the territories of the nation, is a very delicate step, the consequences of which should be maturely considered by the conductor of the state. The emperors Probus and Valens experienced the evil effects of their conduct in having admitted into the territories of the empire numerous bands of Gepidae, Vandals, Goths, and other barbarians. If the sovereign finds that such a step would be attended with too great an inconvenience or danger, he has a right to refuse an establishment to those fugitive people, or to adopt, on their admission, every precaution that prudence can dictate to him. One of the safest will be, not to permit those foreigners to reside together in the same part of the country, there to keep up the form of a separate nation. Men who have not been able to defend their own country, cannot pretend to any right to establish themselves in the territory of another, in order to maintain themselves there as a nation in a body. The sovereign who harbours them may therefore disperse them, and distribute them into the towns and provinces that are in want of inhabitants. In this manner his charity will turn to his own advantage, to the increase of his power, and to the greater benefit of the state. What a difference is observable in Brandenburg since the settlement of the French refugees! The great elector, Frederic William, offered an asylum to those unfortunate people; he provided for their expenses on the road, and with truly regal munificence established them in his states; by which conduct that beneficent and generous prince merited the title of a wise and able politician.

§137. Right accruing from a general permission.When, by the laws or the custom of a state, certain actions are generally permitted to foreigners, as, for instance, travelling freely through the country without any express permission, marrying there, buying or selling merchandise, hunting, fishing, &c. we cannot exclude any one nation from the benefit of the general permission, without doing her an injury, unless there be some particular and lawful reason for refusing to that nation what is granted indiscriminately to others. The question here, it is to be observed, only relates to those actions which are productive of innocent advantage: and as the nation allows them to foreigners without distinction, she, by the very nature of that general permission, affords a sufficient proof that she deems them innocent with respect to herself; which amounts to a declaration that foreigners have a right to them (§127): the innocence of such acts is manifested by the confession of the state; and the refusal of an advantage that is manifestly innocent, is an injury (§129). Besides, to attempt without any reason to lay one nation under a prohibition where an indiscriminate permission is enjoyed by all others, is an injurious distinction, since it can only proceed from hatred or contempt. If there 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 nation; consequently no injury is done to them. The state may also, by way of punishment, except from the general permission a people who have given her just cause of complaint.

§138.A right granted as a favour.As to rights of this nature granted to one or more nations for particular reasons, they are conferred on them as favours, either by treaty, or through gratitude for some particular service: those to whom the same rights are refused cannot consider themselves as offended. The nation does not esteem the advantage accruing from those acts to be an innocent one, since she does not indiscriminately allow them to all nations: and she may confer on whom she pleases any rights over her own property, without affording just grounds to any body else, either for uttering a complaint, or forming pretensions to the same favour.

§139. The nation ought to be courteous.Humanity is not confined to the bare grant of a permission to foreign nations to make an innocent use of what belongs to us: it moreover requires that we should even facilitate to them the means of deriving advantage from it, so far as we can do this without injury to ourselves. Thus it becomes a well-regulated state to promote the general establishment of inns where travellers may procure lodging and food at a fair price,—to watch over their safety,—and to see that they be treated with equity and humanity. A polite nation should give the kindest reception to foreigners, receive them with politeness, and on every occasion shew a disposition to oblige them. By these means every citizen, while he discharges his duty to mankind in general, will at the same time render essential services to his country. Glory is the certain reward of virtue; and the good-will which is gained by an amiable character, is often productive of consequences highly important to the state. No nation is entitled to greater praise in this respect than the French: foreigners no-where meet a reception more agreeable, or better calculated to prevent their regretting the immense sums they annually spend at Paris.

CHAPTER XI

Of Usucaption and Prescription among Nations.

Let us conclude what relates to domain and property with an examination of a celebrated question on which the learned are much divided. It is asked whether usucaption and prescription can take place between independent nations and states?

§140. Definition of usucaption and prescription.Usucaption is the acquisition of domain founded on a long possession, uninterrupted and undisputed,—that is to say, an acquisition solely proved by this possession. Wolf defines it, an acquisition of domain founded on a presumed desertion. His definition explains the manner in which a long and peaceable possession may serve to establish the acquisition of domain. Modestinus,Digest. lib. 3. de Usurp. & Usucap. says, in conformity to the principles of the Roman law, that usucaption is the acquisition of domain by possession continued during a certain period prescribed by law. These three definitions are by no means incompatible with each other; and it is easy to reconcile them by setting aside what relates to the civil law in the last of the three. In the first of them, we have endeavoured clearly to express the idea commonly affixed to the term usucaption.

Prescription is the exclusion of all pretensions to a right,—an exclusion founded on the length of time during which that right has been neglected; or, according to Wolf’s definition, it is the loss of an inherent right by virtue of a presumed consent. This definition, too, is just; that is, it explains how a right may be forfeited by long neglect; and it agrees with the nominal definition we give of the term, prescription, in which we confine ourselves to the meaning usually annexed to the word. As to the rest, the term usucaption is but little used in French; and the word prescription implies, in that language, every thing expressed by the Latin terms usucapio and praescriptio: wherefore we shall make use of the word prescription wherever we have not particular reasons for employing the other.

§141. Usucaption and prescription derived from the law of nature.Now, to decide the question we have proposed, we must first see whether usucaption and prescription are derived from the law of nature. Many illustrious authors have asserted and proved them to be so. Though in this treatise we frequently suppose the reader acquainted with the law of nature, it is proper in this place to establish the decision, since the affair is disputed.

Nature has not herself established a private property over any of her gifts, and particularly over land: she only approves its establishment, for the advantage of the human race. On this ground, then, it would be absurd to suppose, that, after the introduction of domain and property, the law of nature can secure to a proprietor any right capable of introducing disorder into human society. Such would be the right of entirely neglecting a thing that belongs to him,—of leaving it during a long space of time, under all the appearances of a thing utterly abandoned or not belonging to him,—and of coming at length to wrest it from a bona-fide possessor, who has perhaps dearly purchased his title to it,—who has received it as an inheritance from his progenitors, or as a portion with his wife,—and who might have made other acquisitions, had he been able to discover that the one in question was neither solid nor lawful. Far from giving such a right, the law of nature lays an injunction on the proprietor to take care of his property, and imposes on him an obligation to make known his rights, that others may not be led into error: it is on these conditions alone that she approves of the property vested in him, and secures him in the possession. If he has neglected it for such a length of time that he cannot now be admitted to reclaim it without endangering the rights of others, the law of nature will no longer allow him to revive and assert his claims. We must not therefore conceive the right of private property to be a right of so extensive and imprescriptible a nature, that the proprietor may, at the risk of every inconvenience thence resulting to human society, absolutely neglect it for a length of time, and afterwards reclaim it, according to his caprice. With what other view than that of the peace, the safety, and the advantage of human society, does the law of nature ordain that all men should respect the right of private property in him who makes use of it? For the same reason therefore, the same law requires that every proprietor, who for a long time and without any just reason neglects his right, should be presumed to have entirely renounced and abandoned it. This is what forms the absolute presumption (juris & de jure) of its abandonment,—a presumption, upon which another person is legally entitled to appropriate to himself the thing so abandoned. The absolute presumption does not here signify a conjecture of the secret intentions of the proprietor, but a maxim which the law of nature ordains should be considered as true and invariable,—and this with a view of maintaining peace and order among men. Such presumption therefore confers 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 longcontinued and peaceable possession on his part: he proves that right by the very circumstance of possession, and sets up the plea of prescription in bar to the claims of the pretended proprietor. Nothing can be more equitable than this rule. If the claimant were permitted to prove his property, he might happen to bring proofs very convincing indeed in appearance, but, in fact, deriving all their force only from the loss or destruction of some document or deed which would have proved how he had either lost or transferred his right. Would it be reasonable that he should be allowed to call in question the rights of the possessor, when by his own fault he has suffered matters to proceed to such a state, that there would be danger of mistaking the truth? If it be necessary that one of the two should be exposed to lose his property, it is just it should be the party who is in fault.

It is true, that if the bona-fide possessor should discover with perfect certainty, that the claimant is the real proprietor, and has never abandoned his right, he is bound in conscience, and by the internal principles of justice, to make restitution of whatever accession of wealth he has derived from the property of the claimant. But this estimation is not easily made; and it depends on circumstances.

§142. What foundation is required for ordinary prescription.As prescription cannot be grounded on any but an absolute or lawful presumption, it has no foundation, if the proprietor has not really neglected his right. This condition implies three particulars: 1, that the proprietor cannot allege an invincible ignorance, either on his own part, or on that of the persons from whom he derives his right;—2, that he cannot justify his silence by lawful and substantial reasons;—3, that he has neglected his right, or kept silence during a considerable number of years: for the negligence of a few years, being incapable of producing confusion, and rendering doubtful the respective rights of the parties, is not sufficient to found or authorise a presumption of relinquishment. It is impossible to determine by the law of nature the number of years required to found a prescription: this depends on the nature of the property disputed, and the circumstances of the case.

§143. Immemorial prescription.What we have remarked in the preceding section, relates to ordinary prescription. There is another called immemorial, because it is founded on immemorial possession,—that is, on a possession, the origin of which is unknown, or so deeply involved in obscurity, as to allow no possibility of proving whether the possessor has really derived his right from the original proprietor, or received the possession from another. This immemorial prescription secures the possessor’s right, beyond the power of recovery: for it affords a legal presumption that he is the proprietor, as long as the adverse party fails to adduce substantial reasons in support of his claim: and, indeed, whence could these reasons be derived, since the origin of the possession is lost in the obscurity of time? It ought even to secure the possessor against every pretension contrary to his right. What would be the case were it permitted to call in question a right acknowledged time immemorial, when the means of proving it were destroyed by time? Immemorial possession therefore is an irrefragable title, and immemorial prescription admits of no exception: both are founded on a pre-sumption which the law of nature directs us to receive as an incontestable truth.

§144. Claimant alleging reasons for his silence.In cases of ordinary prescription, the same argument cannot be used against a claimant who alleges just reasons for his silence, as the impossibility of speaking, or a well-founded fear, &c. because there is then no longer any room for a presumption that he has abandoned his right. It is not his fault if people have thought themselves authorised to form such a presumption; nor ought he to suffer in consequence: he cannot therefore be debarred the liberty of clearly proving his property. This method of defence in bar of prescription has been often employed against princes whose formidable power had long silenced the feeble victims of their usurpations.

§145. Proprietor sufficiently shewing that he does not mean to abandon his right.It is also very evident that we cannot plead prescription in opposition to a proprietor who, being for the present unable to prosecute his right, confines himself to a notification, by any token whatever, sufficient to shew that it is not his intention to abandon it. Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty or a province, as an evidence that they do not relinquish their claims to it.

§146. Prescription founded on the actions of the proprietor.Every proprietor, who expressly commits or omits certain acts which he cannot commit or omit without renouncing his right, sufficiently indicates by such commission or omission that it is not his intention to preserve it, unless, by an express reservation, he declare the contrary. We are undoubtedly authorised to consider as true what he sufficiently manifests on occasions where he ought to declare the truth: consequently, we may lawfully presume that he abandons his right; and if he would afterwards resume it, we can plead prescription in bar to his claim.

§147. Usucaption and prescription take place between nations.After having shewn that usucaption and prescription are founded in the law of nature, it is easy to prove that they are equally a part of the law of nations, and ought to take place between different states. For the law of nations is but the law of nature applied to nations in a manner suitable to the parties concerned (Prelim. §6). And so far is the nature of the parties from affording them an exemption in the case, that usucaption and prescription are much more necessary between sovereign states than between individuals. Their quarrels are of much greater consequence; their disputes are usually terminated only by bloody wars; and consequently the peace and happiness of mankind much more powerfully require that possession on the part of sovereigns should not be easily disturbed,—and that, if it has for a considerable length of time continued uncontested, it should be deemed just and indisputable. Were we allowed to recur to antiquity on every occasion, there are few sovereigns who could enjoy their rights in security, and there would be no peace to be hoped for on earth.

§148. More difficult, between nations, to found them on a presumptive desertion.It must however be confessed, that, between nations, the rights of usucaption and prescription are often more difficult in their application, so far as they are founded on a presumption drawn from long silence. Nobody is ignorant how dangerous it commonly is for a weak state even to hint a claim to the possessions of a powerful monarch. In such a case, therefore, it is not easy to deduce from long silence a legal presumption of abandonment. To this we may add, that, as the ruler of the society has usually no power to alienate what belongs to the state, his silence, even though sufficient to afford a presumption of abandonment on his own part, cannot impair the national right or that of his successors. The question then will be, whether the nation has neglected to supply the omission caused by the silence of her ruler, or has participated in it by a tacit approbation.

§149. Other principles that enforce prescription.But there are other principles that establish the use and force of prescription between nations. The tranquillity of the people, the safety of states, the happiness of the human race, do not allow that the possessions, empire, and other rights of nations should remain uncertain, subject to dispute, and ever ready to occasion bloody wars. Between nations therefore it becomes necessary to admit prescription founded on length of time, as a valid and incontestable title. If any nation has kept silence through fear, and as it were through necessity, the loss of her right is a misfortune which she ought patiently to bear, since she could not avoid it: and why should she not submit to this as well as to have her towns and provinces taken from her by an unjust conqueror, and to be forced to cede them to him by treaty? It is however only in cases of long-continued, undisputed, and uninterrupted possession, that prescription is established on these grounds, because it is necessary that affairs should some time or other be brought to a conclusion, and settled on a firm and solid foundation. But the case is different with a possession of only a few years’ continuance, during which the party whose rights are invaded may from prudential reasons find it expedient to keep silence, without at the same time affording room to accuse him of suffering things to become uncertain, and of renewing quarrels without end.

As to immemorial prescription, what we have said respecting it (§143) is sufficient to convince every one that it ought necessarily to take place between nations.

§150. Effects of the voluntary law of nations on this subject.Usucaption and prescription being so necessary to the tranquillity and happiness of human society, it is justly presumed that all nations have consented to admit the lawful and reasonable use of them, with a view to the general advantage, and even to the private interest of each individual nation.

Prescription of many years’ standing, as well as usucaption, is then established by the voluntary law of nations (Prelim. §21).

Nay more, as by virtue of that law nations are, in all doubtful cases, supposed to stand on a footing of equal right in treating with each other (ibid.), prescription, when founded on long undisputed possession, ought to have its full effect between nations, without admitting any allegation of the possession being unjust, unless the evidence to prove it be very clear and convincing indeed. For, without such evidence, every nation is to be considered as a bona-fide possessor. Such is the right that a sovereign state ought to allow to other states; but to herself she should only allow the use of the internal and necessary right (Prelim. §28). It is the bona-fide possessor alone, whose prescription will stand the test of conscience.

§151. Law of treaties or of custom in this matter.Since prescription is subject to so many difficulties, it would be very proper that adjoining nations should by treaty adopt some rule on this subject, particularly with respect to the number of years required to found a lawful prescription, since this latter point cannot in general be determined by the law of nature alone. If, in default of treaties, custom has determined any thing in this matter, the nations between whom this custom is in force, ought to conform to it (Prelim. §26).

CHAPTER XII

Of Treaties of Alliance, and other public Treaties.

§152. Nature of treaties.The subject of treaties is undoubtedly one of the most important that the mutual relations and affairs of nations can present us with. Having but too much reason to be convinced of the little dependence that is to be placed on the natural obligations of bodies politic, and on the reciprocal duties imposed upon them by humanity,—the most prudent nations endeavour to procure by treaties those succours and advantages which the law of nature would insure to them, if it were not rendered ineffectual by the pernicious counsels of a false policy.

A treaty, in Latin foedus, is a compact made with a view to the public welfare by the superior power, either for perpetuity, or for a considerable time.

§153. Pactions, agreements, or conventions.The compacts which have temporary matters for their object are called agreements, conventions, and pactions. They are accomplished by one single act, and not by repeated acts. These compacts are perfected in their execution once for all: treaties receive a successive execution whose duration equals that of the treaty.

§154. By whom treaties are made.Public treaties can only be made by the superior powers, by sovereigns who contract in the name of the state. Thus conventions made between sovereigns respecting their own private affairs, and those between a sovereign and a private person, are not public treaties.

The sovereign who possesses the full and absolute authority, has, doubtless, a right to treat in the name of the state he represents; and his engagements are binding on the whole nation. But all rulers of states have not a power to make public treaties by their own authority alone: some are obliged to take the advice of a senate, or of the representatives of the nation. It is from the fundamental laws of each state that we must learn where resides the authority that is capable of contracting with validity in the name of the state.

Notwithstanding our assertion above, that public treaties are made only by the superior powers, treaties of that nature may nevertheless be entered into by princes or communities who have a right to contract them, either by the concession of the sovereign, or by the fundamental laws of the state, by particular reservations, or by custom. Thus the princes and free cities of Germany, though dependent on the emperor and the empire, have the right of forming alliances with foreign powers. The constitutions of the empire give them, in this as in many other respects, the rights of sovereignty. Some cities of Switzerland, though subject to a prince, have made alliances with the cantons: the permission or toleration of the sovereign has given birth to such treaties, and long custom has established the right to contract them.

§155. Whether a state under protection may make treaties.As a state that has put herself under the protection of another, has not on that account forfeited her character of sovereignty (Book I. §192), she may make treaties and contract alliances, unless she has, in the treaty of protection, expressly renounced that right. But she continues for ever after bound by this treaty of protection, so that she cannot enter into any engagements contrary to it,—that is to say, engagements which violate the express conditions of the protection, or that are in their own nature repugnant to every treaty of protection. Thus the protected state cannot promise assistance to the enemies of her protector, nor grant them a passage.

§156. Treaties concluded by proxies or plenipotentiaries.Sovereigns treat with each other through the medium of agents or proxies who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To their office we may apply all the rules of natural law which respect things done by commission. The rights of the proxy are determined by the instructions that are given him: he must not deviate from them; but every promise which he makes in the terms of his commission, and within the extent of his powers, is binding on his constituent.

At present, in order to avoid all danger and difficulty, princes reserve to themselves the power of ratifying what has been concluded upon in their name by their ministers. The plenipotentiary commission is but a procuration cum libera. If this commission were to have its full effect, they could not be too circumspect in giving it. But as princes cannot otherwise than by force of arms be compelled to fulfil their engagements, it is customary to place no dependence on their treaties, till they have agreed to and ratified them. Thus, as every agreement made by the minister remains invalid till sanctioned by the prince’s ratification, there is less danger in vesting him with unlimited powers. But before a prince can honourably refuse to ratify a compact made in virtue of such plen-ipotentiary commission, he should be able to allege strong and substantial reasons, and, in particular, to prove that his minister has deviated from his instructions.

§157. Validity of treaties.A treaty is valid if there be no defect in the manner in which it has been concluded: and for this purpose nothing more can be required, than a sufficient power in the contracting parties, and their mutual consent sufficiently declared.

§158. Injury does not render them void.An injury cannot then render a treaty invalid. He who enters into engagements ought carefully to weigh every thing before he concludes them; he may do what he pleases with his own property, forego his rights, and renounce his advantages, as he thinks proper; the acceptor is not obliged to inquire into his motives, and to estimate their due weight. If we might recede from a treaty because we found ourselves injured by it, there would be no stability in the contracts of nations. Civil laws may set bounds to injury, and determine what degree of it shall be capable of invalidating a contract. But sovereigns are subject to no superior judge. How shall they be able to prove the injury to each other’s satisfaction? Who shall determine the degree of it sufficient to invalidate a treaty? The peace and happiness of nations manifestly require that their treaties should not depend on so vague and dangerous a plea of invalidity.

§159. Duty of nations in this respect.A sovereign nevertheless is in conscience bound to pay a regard to equity, and to observe it as much as possible, in all his treaties. And if it happens that a treaty which he has concluded with upright intentions, and without perceiving any unfairness in it, should eventually prove disadvantageous to an ally, nothing can be more honourable, more praiseworthy, more conformable to the reciprocal duties of nations, than to relax the terms of such treaty as far as he can do it consistently with his duty to himself, and without exposing himself to danger, or incurring a considerable loss.

§160. Nullity of treaties which are pernicious to the state.Though a simple injury, or some disadvantage in a treaty, be not sufficient to invalidate it, the case is not the same with those inconveniences that would lead to the ruin of the nation. Since, in the formation of every treaty, the contracting parties must be vested with sufficient powers for the purpose, a treaty pernicious to the state is null, and not at all obligatory, as no conductor of a nation has the power to enter into engagements to do such things as are capable of destroying the state, for whose safety the government is intrusted to him. The nation itself, being necessarily obliged to perform every thing required for its preservation and safety (Book I. §16, &c.), cannot enter into engagements contrary to its indispensable obligations. In the year 1506, the states-general of the kingdom of France, assembled at Tours, engaged Louis XII. to break the treaty he had concluded with the emperor Maximilian, and the archduke Philip, his son, because that treaty was pernicious to the kingdom. They also decided, that neither the treaty, nor the oath that had accompanied it, could be binding on the king, who had no right to alienate the property of the crown. We have treated of this latter source of invalidity in the twenty-first chapter of Book I.

§161. Nullity of treaties made for an unjust or dishonest purpose.For the same reason—the want of sufficient powers—a treaty concluded for an unjust or dishonest purpose is absolutely null and void,—nobody having a right to engage to do things contrary to the law of nature. Thus, an offensive alliance, made for the purpose of plundering a nation from whom no injury has been received, may or rather ought to be broken.

§162. Whether an alliance may be contracted with those who do not profess the true religion.It is asked, whether it be allowable to contract an alliance with a nation that does not profess the true religion, and whether treaties made with the enemies of the faith are valid? Grotius has treated this subject at large: and the discussion might have been necessary at a time when party-rage still obscured those principles which it had long caused to be forgotten: but we may venture to believe that it would be superfluous in the present age. The law of nature alone regulates the treaties of nations: the difference of religion is a thing absolutely foreign to them. Different people treat with each other in quality of men, and not under the character of Christians, or of Mahommedans. Their common safety requires that they should be capable of treating with each other, and of treating with security. Any religion that should in this case clash with the law of nature, would, on the very face of it, wear the stamp of reprobation, and could not pretend to derive its origin from the great author of nature, who is ever steady, ever consistent with himself. But if the maxims of a religion tend to establish it by violence, and to oppress all those who will not embrace it, the law of nature forbids us to favour that religion, or to contract any unnecessary alliances with its inhuman followers; and the common safety of mankind invites them rather to enter into an alliance against such a people,—to repress such outrageous fanatics, who disturb the public repose, and threaten all nations.

§163. Obligation of observing treaties.It is a settled point in natural law, that he who has made a promise to any one, has conferred upon him a real right to require the thing promised,—and consequently, that the breach of a perfect promise is a violation of another person’s right, and as evidently an act of injustice, as it would be to rob a man of his property. The tranquillity, the happiness, the security of the human race, wholly depend on justice,—on the obligation of paying a regard to the rights of others. The respect which others pay to our rights of domain and property constitutes the security of our actual possessions; the faith of promises is our security for things that cannot be delivered or executed upon the spot. There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises. This obligation is then as necessary, as it is natural and indubitable, between na-tions that live together in a state of nature, and acknowledge no superior upon earth, to maintain order and peace in their society. Nations, therefore, and their conductors, ought inviolably to observe their promises and their treaties. This great truth, though too often neglected in practice, is generally acknowledged by all nations: the reproach of perfidy is esteemed by sovereigns a most atrocious affront; yet he who does not observe a treaty, is certainly perfidious, since he violates his faith. On the contrary, nothing adds so great a glory to a prince, and to the nation he governs, as the reputation of an inviolable fidelity in the performance of promises. By such honourable conduct, as much or even more than by her valour, the Swiss nation has rendered herself respectable throughout Europe, and is deservedly courted by the greatest monarchs, who intrust their personal safety to a body-guard of her citizens. The parliament of England has more than once thanked the king for his fidelity and zeal in succouring the allies of his crown. This national magnanimity is the source of immortal glory; it presents a firm basis on which nations may build their confidence; and thus it becomes an unfailing source of power and splendor.

§164. The violation of a treaty is an act of injustice.As the engagements of a treaty impose on the one hand a perfect obligation, they produce on the other a perfect right. The breach of a treaty is therefore a violation of the perfect right of the party with whom we have contracted; and this is an act of injustice against him.

§165. Treaties cannot be made, contrary to those already existing.A sovereign already bound by a treaty, cannot enter into others contrary to the first. The things, respecting which he has entered into engagements, are no longer at his disposal. If it happens that a posterior treaty be found, in any particular point, to clash with one of more ancient date, the new treaty is null and void with respect to that point, inasmuch as it tends to dispose of a thing that is no longer in the power of him who appears to dispose of it. (We are here to be understood as speaking of treaties made with different powers.) If the prior treaty is kept secret, it would be an act of consummate perfidy to conclude a contrary one, which may be rendered void whenever occasion serves. Nay, even to enter into engagements, which, from the eventual turn of affairs, may chance at a future day to militate against the secret treaty, and from that very circumstance to prove ineffectual and nugatory, is by no means justifiable, unless we have the ability to make ample compensation to our new ally: otherwise it would be practising a deception on him, to promise him a thing without informing him that cases may possibly occur, which will not allow us to substantiate our promise. The ally thus deceived is undoubtedly at liberty to renounce the treaty; but if he chuses rather to adhere to it, it will hold good with respect to all the articles that do not clash with the prior treaty.

§166. How treaties may be concluded with several nations with the same view.There is nothing to prevent a sovereign from entering into engagements of the same nature with two or more nations, if he be able to fulfil those several engagements to his different allies at the same time. For instance, a commercial treaty with one nation does not deprive us of the liberty of afterwards contracting similar engagements with other states, unless we have, in the former treaty, bound ourselves by a promise not to grant the same advantages to any other nation. We may in the same manner promise to assist two different allies with troops, if we are able to furnish them, or if there is no probability that both will have occasion for them at the same time.

§167. The more ancient ally entitled to a preference.If nevertheless the contrary happens, the more ancient ally is entitled to a preference: for the engagement was pure and absolute with respect to him; whereas we could not contract with the more recent ally, without a reservation of the rights of the former. Such reservation is founded in justice, and is tacitly understood, even if not expressly made.

§168. We owe no assistance in an unjust war.The justice of the cause is another ground of preference between two allies. We ought even to refuse assistance to the one whose cause is unjust, whether he be at war with one of our allies, or with another state: to assist him on such an occasion, would in the event be the same thing as if we had contracted an alliance for an unjust purpose; which we are not allowed to do (§161). No one can be validly engaged to support injustice.

§169. General division of treaties.Grotius divides treaties into two general classes,—first, those which turn merely on things to which the parties were already bound by the law of nature,—secondly,1. Those that relate to things already due by the law of nature.those by which they enter into further engagements. By the former we acquire a perfect right to things to which we before had only an imperfect right, so that we may thenceforward demand as our due what before we could only request as an office of humanity. Such treaties became very necessary between the nations of antiquity, who, as we have already observed, did not think themselves bound to any duty towards people who were not in the number of their allies. They are useful even between the most polished nations, in order the better to secure the succours they may expect,—to determine the measure and degree of those succours, and to shew on what they have to depend,—to regulate what cannot in general be determined by the law of nature,—and thus to obviate all difficulties, by providing against the various interpretations of that law. Finally, as no nation possesses inexhaustible means of assistance, it is prudent to secure to ourselves a peculiar right to that assistance which cannot be granted to all the world.

To this first class belong all simple treaties of peace and friendship, when the engagements which we thereby contract, make no addition to those duties that men owe to each other as brethren, and as members of the human society: such are those treaties that permit commerce, passage, &c.

§170. Collision of these treaties with the duties we owe to ourselves.If the assistance and offices that are due by virtue of such a treaty, should on any occasion prove incompatible with the duties a nation owes to herself, or with what the sovereign owes to his own nation, the case is tacitly and necessarily excepted in the treaty. For neither the nation nor the sovereign could enter into an engagement to neglect the care of their own safety or the safety of the state, in order to contribute to that of their ally. If the sovereign, in order to preserve his own nation, has occasion for the things he has promised in the treaty,—if, for instance, he has engaged to furnish corn, and in a time of dearth he has scarcely sufficient for the subsistence of his subjects, he ought without hesitation to give a preference to his own nation: for it is only so far as he has it in his power to give assistance to a foreign nation, that he naturally owes such assistance; and it was upon that footing alone that he could promise it in a treaty. Now it is not in his power to deprive his own nation of the means of subsistence in order to assist another nation at their expense. Necessity here forms an exception, and he does not violate the treaty, because he cannot fulfil it.

§171. Treaties in which we barely promise to do no injury.The treaties by which we simply engage not to do any evil to an ally, to abstain, with respect to him, from all harm, offence, and injury, are not necessary, and produce no new right, since every individual already possesses a perfect natural right to be exempt from harm, injury, and real offence. Such treaties, however, become very useful, and accidentally necessary, among those barbarous nations who think they have a right to act as they please towards foreigners. They are not wholly useless with nations less savage, who, without so far divesting themselves of humanity, entertain a much less powerful sense of a natural obligation, than of one which they have themselves contracted by solemn engagements: and would to God that this manner of thinking were entirely confined to barbarians! We see too frequent effects of it among those who boast of a perfection much superior to the law of nature. But the imputation of perfidy is prejudicial to the rulers of nations, and thus becomes formidable even to those who are little solicitous to merit the appellation of virtuous men, and who feel no scruple in silencing the reproaches of conscience.

§172. Treaties concerning things that are not naturally due.Treaties by which we contract engagements that were not imposed on us by the law of nature, are either equal or unequal.

Equal treaties.Equal treaties are those in which the contracting parties promise the same things, or things that are equivalent, or, finally, things that are equitably proportioned, so that the condition of the parties is equal. Such is, for example, a defensive alliance, in which the parties reciprocally stipulate for the same succours. Such is an offensive alliance, in which it is agreed that each of the allies shall furnish the same number of vessels, the same number of troops, of cavalry and infantry, or an equivalent in vessels, in troops, in artillery, or in money. Such is also a league in which the quota of each of the allies is regulated in proportion to the interest he takes or may have in the design of the league. Thus the emperor and the king of England, in order to induce the states-general of the United Provinces to accede to the treaty of Vienna of the 16th of March 1731, consented that the republic should only promise to her allies the assistance of four thousand foot and a thousand horse, though they engaged, in case of an attack upon the republic, to furnish her, each, with eight thousand foot and four thousand horse. We are also to place in the class of equal treaties those which stipulate that the allies shall consider themselves as embarked in a common cause, and shall act with all their strength. Notwithstanding a real inequality in their strength, they are nevertheless willing in this instance to consider it as equal.

Equal treaties may be subdivided into as many species as there are of different transactions between sovereigns. Thus they treat of the conditions of commerce, of their mutual defence, of associations in war, of reciprocally granting each other a passage, or refusing it to the enemies of their ally; they engage not to build fortresses in certain places, &c. But it would be needless to enter into these particulars: generals are sufficient, and are easily applied to particular cases.

§173. Obligation of preserving equality in treaties.Nations being no less obliged than individuals to pay a regard to equity, they ought, as much as possible, to preserve equality in their treaties. When, therefore, the parties are able reciprocally to afford each other equal advantages, the law of nature requires that their treaties should be equal, unless there exist some particular reason for deviating from that equality,—such, for instance, as gratitude for a former benefit,—the hope of gaining the inviolable attachment of a nation,—some private motive which renders one of the contracting parties particularly anxious to have the treaty concluded, &c. Nay, viewing the transaction in its proper point of light, the consideration of that particular reason restores to the treaty that equality which seems to be destroyed by the difference of the things promised.

I see those pretended great politicians smile, who employ all their subtilty in circumventing those with whom they treat, and in so managing the conditions of the treaty, that all the advantage shall accrue to their masters. Far from blushing at a conduct so contrary to equity, to rectitude, and natural honesty, they glory in it, and think themselves entitled to the appellation of able negotiators. How long shall we continue to see men in public characters take a pride in practices that would disgrace a private individual? The private man, if he is void of conscience, laughs also at the rules of morality and justice; but he laughs in secret: it would be dangerous and prejudicial to him to make a public mockery of them. Men in power more openly sacrifice honour and honesty to present advantage: but, fortunately for mankind, it often happens that such seeming advantage proves fatal to them; and even between sovereigns, candour and rectitude 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 England, by her good faith and generosity to her allies, gained immense credit, and rose to the highest pitch of influence and respectability.

§174. Difference between equal treaties and equal alliances.When people speak of equal treaties, they have commonly in their minds a double idea of equality, viz. equality in the engagements, and equality in the dignity of the contracting parties. It becomes therefore necessary to remove all ambiguity; and for that purpose, we may make a distinction between equal treaties and equal alliances. Equal treaties are those in which there is an equality in the promises made, as we have above explained (§172); and equal alliances, those in which equal treats with equal, making no difference in the dignity of the contracting parties, or, at least, admitting no too glaring superiority, but merely a preeminence of honour and rank. Thus kings treat with the emperor on a footing of equality, though they do not hesitate to allow him precedency; thus great republics treat with kings on the same footing, notwithstanding the pre-eminence which the former now-a-days yield to the latter. Thus all true sovereigns ought to treat with the most powerful monarch, since they are as really sovereigns, and as independent as himself. (See §37 of this Book.)

§175. Unequal treaties and unequal alliances.Unequal treaties are those in which the allies do not reciprocally promise to each other the same things, or things equivalent; and an alliance is unequal when it makes a difference in the dignity of the contracting parties. It is true, that most commonly an unequal treaty will be at the same time an unequal alliance; as great potentates are seldom accustomed to give or to promise more than is given or promised to them, unless such concessions be fully compensated in the article of honour and glory; and, on the other hand, a weak state does not submit to burthensome conditions without being obliged also to acknowledge the superiority of her ally.

Those unequal treaties that are at the same time unequal alliances, are divided into two classes,—the first consisting of those where the inequality prevails on the side of the more considerable power,—the second comprehending treaties where the inequality is on the side of the inferior power.

Treaties of the former class, without attributing to the more powerful of the contracting parties any right over the weaker, simply allow him a superiority of honours and respect. We have treated of this in Book I. §5. Frequently a great monarch, wishing to engage a weaker state in his interest, offers her advantageous conditions,—promises her gratuitous succours, or greater than he stipulates for himself: but at the same time he claims a superiority of dignity, and requires respect from his ally. It is this last particular which renders the alliance unequal: and to this circumstance we must attentively advert; for with alliances of this nature we are not to confound those in which the parties treat on a footing of equality, though the more powerful of the allies, for particular reasons, gives more than he receives, promises his assistance gratis, without requiring gratuitous assistance in his turn, or promises more considerable succours, or even the assistance of all his forces:—here the alliance is equal, but the treaty is unequal, unless indeed we may be allowed to say, that, as the party who makes the greater concessions has a greater interest in concluding the treaty, this consideration restores the equality. Thus, at a time when France found herself embarrassed in a momentous war with the house of Austria, and the cardinal de Richelieu wished to humble that formidable power, he, like an able minister, concluded a treaty with Gustavus Adolphus, in which all the advantage appeared to be on the side of Sweden. From a bare consideration of the stipulations of that treaty, it would have been pronounced an unequal one; but the advantages which France derived from it, amply compensated for that inequality. The alliance of France with the Swiss, if we regard the stipulations alone, is an unequal treaty; but the valour of the Swiss troops has long since counterbalanced that inequality; and the difference in the interests and wants of the parties serves still further to preserve the equilibrium. France, often involved in bloody wars, has received essential services from the Swiss: the Helvetic body, void of ambition, and untainted with the spirit of conquest, may live in peace with the whole world; they have nothing to fear, since they have feelingly convinced the ambitious, that the love of liberty gives the nation sufficient strength to defend her frontiers. This alliance may at certain times have appeared unequal:—our 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.

Treaties in which the inequality prevails on the side of the inferior power,—that is to say, those which impose on the weaker party more extensive obligations or greater burthens, or bind him down to oppressive and disagreeable conditions,—these unequal treaties, I say, are always at the same time unequal alliances; for the weaker party never submits to burthensome conditions, without being obliged also to acknowledge the superiority of his ally. These conditions are commonly imposed by the conqueror, or dictated by necessity, which obliges a weak state to seek the protection or assistance of another more powerful; and by this very step, the weaker state acknowledges her own inferiority. Besides, this forced inequality in a treaty of alliance is a disparagement to her, and lowers her dignity, at the same time that it exalts that of her more powerful ally. Sometimes also, the weaker state not being in a condition to promise the same succours as the more powerful one, it becomes necessary that she should compensate for her inability in this point, by engagements which degrade her below her ally, and often even subject her, in various respects, to his will. Of this kind are all those treaties in which the weaker party alone engages not to make war without the consent of her more powerful ally,—to have the same friends and the same enemies with him,—to support and respect his dignity,—to have no fortresses in certain places,—not to trade or raise soldiers in certain free countries,—to deliver up her vessels of war, and not to build others, as was the case of the Carthaginians when treating with their Roman conquerors,—to keep up only a certain number of troops, &c.

These unequal alliances are subdivided into two kinds; they either impair the sovereignty, or they do not. We have slightly touched on this, in Book I. Ch. I. and XVI.

The sovereignty subsists entire and unimpaired when none of its constituent rights are transferred to the superior ally, or rendered, as to the exertion of them, dependent on his will. But the sovereignty is impaired when any of its rights are ceded to an ally, or even if the use of them be merely rendered dependent on the will of that ally. For example, the treaty does not impair the sovereignty, if the weaker state only promises not to attack a certain nation without the consent of her ally. By such an engagement she neither divests herself of her right, nor subjects the exertion of it to another’s will; she only consents to a restriction in favour of her ally: and thus she incurs no greater diminution of liberty than is incurred by promises of every kind. Such reservations are every day stipulated in alliances that are perfectly equal. But if either of the contracting parties engages not to make war against any one whatsoever without the consent or permission of an ally who on his side does not make the same promise, the former contracts an unequal alliance with diminution of sovereignty; for he deprives himself of one of the most important branches of the sovereign power, or renders the exertion of it dependent on another’s will. The Carthaginians having, in the treaty that terminated the second Punic war, promised not to make war on any state without the consent of the Roman people, were thenceforward, and for that reason, considered as dependent on the Romans.

§176. How an alliance with diminution of sovereignty may annul preceding treaties.When a nation is forced to submit to the will of a superior power, she may lawfully renounce her former treaties, if the party with whom she is obliged to enter into an alliance requires it of her. As she then loses a part of her sovereignty, her ancient treaties fall to the ground together with the power that had concluded them. This is a necessity that cannot be imputed to her as a crime: and since she would have a right to place herself in a state of absolute subjection, and to renounce her own sovereign, if she found such measures necessary for her preservation,—by a much stronger reason, she has a right, under the same necessity, to abandon her allies. But a generous people will exhaust every resource before they will submit to terms so severe and so humiliating.

§177. We ought to avoid as much as possible making unequal alliances.In general, as every nation ought to be jealous of her glory, careful of maintaining her dignity, and preserving her independence, nothing short of the last extremity, or motives the most weighty and substantial, ought ever to induce a people to contract an unequal alliance. This observation is particularly meant to apply to treaties where the inequality prevails on the side of the weaker ally, and still more particularly to those unequal alliances that degrade the sovereignty. Men of courage and spirit will accept such treaties from no other hands but those of imperious necessity.

§178. Mutual duties of nations with respect to unequal alliances.Notwithstanding every argument which selfish policy may suggest to the contrary, we must either pronounce sovereigns to be absolutely emancipated from all subjection to the law of nature, or agree that it is not lawful for them, without just reasons, to compel weaker states to sacrifice their dignity, much less their liberty, by unequal alliances. Nations owe to each other the same assistance, the same respect, the same friendship, as individuals living in a state of nature. Far from seeking to humble a weaker neighbour, and to despoil her of her most valuable advantages, they will respect and maintain her dignity and her liberty, if they are inspired by virtue more than by pride,—if they are actuated by principles of honour more than by the meaner views of sordid interest,—nay, if they have but sufficient discernment to distinguish their real interests. Nothing more firmly secures the power of a great monarch than his attention and respect to all other sovereigns. The more cautious he is to avoid offending his weaker brethren,—the greater esteem he testifies for them,—the more will they revere him in turn: they feel an affection for a power whose superiority over them is displayed only by the conferring of favours: they cling to such a monarch as their prop and support; and he becomes the arbiter of nations. Had his demeanour been stamped with arrogance, he would have been the object of their jealousy and fear, and might perhaps have one day sunk under their united efforts.

§179. In alliances where the inequality is on the side of the more powerful party.But as the weaker party ought, in his necessity, to accept with gratitude the assistance of the more powerful, and not to refuse him such honours and respect as are flattering to the person who receives them, without degrading him by whom they are rendered,—so, on the other hand, nothing is more conformable to the law of nature, than a generous grant of assistance from the more powerful state, unaccompanied by any demand of a return, or, at least, of an equivalent. And in this instance also, there exists an inseparable connection between interest and duty. Sound policy holds out a caution to a powerful nation not to suffer the lesser states in her neighbourhood to be oppressed. If she abandon them to the ambition of a conqueror, he will soon become formidable to herself. Accordingly, sovereigns, who are in general sufficiently attentive to their own interests, seldom fail to reduce this maxim to practice. Hence those alliances, sometimes against the house of Austria, sometimes against its rival, according as the power of the one or the other preponderates. Hence that balance of power, the object of perpetual negotiations and wars.

When a weak and poor nation has occasion for assistance of another kind,—when she is afflicted by famine,—we have seen (§5), that those nations who have provisions ought to supply her at a fair price. It were noble and generous to furnish them at an under price, or to make her a present of them, if she be incapable of paying their value. To oblige her to purchase them by an unequal alliance, and especially at the expense of her liberty,—to treat her as Joseph formerly treated the Egyptians,—would be a cruelty almost as dreadful, as suffering her to perish with famine.

§180. How inequality of treaties and alliances may be conformable to the law of nature.But there are cases where the inequality of treaties and alliances, dictated by some particular reasons, is not contrary to equity, nor, consequently, to the law of nature. Such, in general, are all those cases in which the duties that a nation owes to herself, or those which she owes to other nations, prescribe to her a departure from the line of equality. If, for instance, a weak state attempts, without necessity, to erect a fortress, which she is incapable of defending, in a place where it might become very dangerous to her neighbour if ever it should fall into the hands of a powerful enemy, that neighbour may oppose the construction of the fortress; and if he does not find it convenient to pay the lesser state a compensation for complying with his desire, he may force her compliance, by threatening to block up the roads and avenues of communication, to prohibit all intercourse between the two nations, to build fortresses, or to keep an army on the frontier, to consider that little state in a suspicious light, &c. He thus indeed imposes an unequal condition; but his conduct is authorised by the care of his own safety. In the same manner he may oppose the forming of a highway, that would open to an enemy an entrance into his state. War might furnish us with a multitude of other examples. But rights of this nature are frequently abused; and it requires no less moderation than prudence to avoid turning them into oppression.

Sometimes those duties to which other nations have a claim, recommend and authorise 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 shewing his deep sense of a favour received,—may induce a generous sovereign to enter into an alliance with joy, and to give in the treaty more than he receives.

§181. Inequality imposed by way of punishment.It is also consistent with justice to impose the conditions of an unequal treaty, or even an unequal alliance, by way of penalty, in order to punish an unjust aggressor, and render him incapable of easily injuring us for the time to come. Such was the treaty to which the elder Scipio Africanus forced the Carthaginians to submit, after he had defeated Hannibal. The conqueror often dictates such terms: and his conduct in this instance is no violation of the laws of justice or equity, provided he do not transgress the bounds of moderation, after he has been crowned with success in a just and necessary war.

§182. Other kinds of which we have spoken elsewhere.The different treaties of protection,—those by which a state renders itself tributary or feudatory to another,—form so many different kinds of unequal alliances. But we shall not repeat here what we have said respecting them in Book I. Chap. I. and XVI.

§183. Personal and real treaties.By another general division of treaties or alliances, they are distinguished into personal and real: the former are those that relate to the persons of the contracting parties, and are confined and in a manner attached to them. Real alliances relate only to the matters in negotiation between the contracting parties, and are wholly independent of their persons.

A personal alliance expires with him who contracted it.

A real alliance attaches to the body of the state, and subsists as long as the state, unless the period of its duration has been limited.

It is of considerable importance not to confound these two sorts of alliances. Accordingly, sovereigns are at present accustomed to express themselves in their treaties in such a manner as to leave no uncertainty in this respect: and this is doubtless the best and safest method. In default of this precaution, the very subject of the treaty, or the expressions in which it is couched, may furnish a clue to discover whether it be real or personal.—On this head we shall lay down some general rules.

§184. Naming the contracting parties in the treaty does not render it personal.In the first place, we are not to conclude that a treaty is a personal one from the bare circumstance of its naming the contracting sovereigns: for the name of the reigning sovereign is often inserted with the sole view of shewing with whom the treaty has been concluded, without meaning thereby to intimate that it has been made with himself personally. This is an observation of the civilians Pedius and Ulpian, repeated by all writers who have treated of these subjects.

§185. An alliance made by a republic is real.Every alliance made by a republic is in its own nature real, for it relates only to the body of the state. When a free people, a popular state, or an aristocratical republic, concludes a treaty, it is the state herself that contracts; and her engagements do not depend on the lives of those who were only the instruments in forming them: the members of the people, or of the governing body, change and succeed each other; but the state still continues the same.

Since, therefore, such a treaty directly relates to the body of the state, it subsists, though the form of the republic should happen to be changed,—even though it should be transformed into a monarchy. For the state and the nation are still the same, notwithstanding every change that may take place in the form of the government; and the treaty concluded with the nation remains in force as long as the nation exists. But it is manifest that all treaties relating to the form of government are exceptions to this rule. Thus two popular states, that have treated expressly, or that evidently appear to have treated, with the view of maintaining themselves in concert in their state of liberty and popular government, cease to be allies from the very moment that one of them has submitted to be governed by a single person.

§186. Treaties concluded by kings or other monarchs.Every public treaty, concluded by a king or by any other monarch, is a treaty of the state; it is obligatory on the whole state, on the entire nation which the king represents, and whose power and rights he exercises. It seems then at first view, that every public treaty ought to be presumed real, as concerning the state itself. There can be no doubt with respect to the obligation to observe the treaty: the only question that arises, is respecting its duration. Now there is often room to doubt whether the contracting parties have intended to extend their reciprocal engagements beyond the term of their own lives, and to bind their successors. Conjunctures change; a burthen that is at present light, may in other circumstances become insupportable or at least oppressive: the manner of thinking among sovereigns is no less variable; and there are certain things of which it is proper that each prince should be at liberty to dispose according to his own system. There are others that are freely granted to one king, and would not be allowed to his successor. It therefore becomes necessary to consider the terms of the treaty, or the matter which forms the subject of it, in order to discover the intentions of the contracting powers.

§187. Perpetual treaties, and those for a certain time.Perpetual treaties, and those made for a determinate period, are real ones, since their duration cannot depend on the lives of the contracting parties.

§188. Treaties made for the king and his successors.In the same manner, when a king declares in the treaty that it is made “for himself and his successors,” it is manifest that this is a real treaty. It attaches to the state, and is intended to last as long as the kingdom itself.

§189. Treaties made for the good of the kingdom.When a treaty expressly declares that it is made for the good of the kingdom, it thus furnishes an evident proof that the contracting powers did not mean that its duration should depend on that of their own lives, but on that of the kingdom itself. Such treaty is therefore a real one.

Independently even of this express declaration, when a treaty is made for the purpose of procuring to the state a certain advantage which is in its own nature permanent and unfailing, there is no reason to suppose that the prince by whom the treaty has been concluded, intended to limit it to the duration of his own life. Such a treaty ought therefore to be considered as a real one, unless there exist very powerful evidence to prove that the party with whom it was made, granted the advantage in question only out of regard to the prince then reigning, and as a personal favour: in which case the treaty terminates with the life of the prince, as the motive for the concession expires with him. But such a reservation is not to be presumed on slight grounds: for it would seem that if the contracting parties had had it in contemplation, they should have expressed it in the treaty.

§190. How presumption ought to be founded in doubtful cases.In case of doubt, where there exists no circumstance by which we can clearly prove either the personality or the reality of a treaty, it ought to be presumed a real treaty if it chiefly consists of favourable articles,—if of odious ones, a personal treaty. By favourable articles we mean those which tend to the mutual advantage of the contracting powers, and which equally favour both parties; by odious articles, we understand those which onerate one of the parties only, or which impose a much heavier burthen upon the one than upon the other. We shall treat this subject more at large in the chapter on the “Interpretation of Treaties.” Nothing is more conformable to reason and equity than this rule. Whenever absolute certainty is unattainable in the affairs of men, we must have recourse to presumption. Now, if the contracting powers have not explained themselves, it is natural, when the question relates to things favourable, and equally advantageous to the two allies, to presume that it was their intention to make a real treaty, as being the more advantageous to their respective kingdoms: and if we are mistaken in this presumption, we do no injury to either party. But if there be any thing odious in the engagements,—if one of the contracting states finds itself overburthened by them,—how can it be presumed that the prince who entered into such engagements, intended to lay that burthen upon his kingdom in perpetuity? Every sovereign is presumed to desire the safety and advantage of the state with which he is intrusted: wherefore it cannot be supposed that he has consented to load it forever with a burthensome obligation. If necessity rendered such a measure unavoidable, it was incumbent on his ally to have the matter explicitly ascertained at the time; and it is probable that he would not have neglected this precaution, well knowing that mankind in general, and sovereigns in particular, seldom submit to heavy and disagreeable burthens, unless bound to do so by formal obligations. If it happens then that the presumption is a mistake, and makes him lose something of his right, it is a consequence of his own negligence. To this we may add, that if either the one or the other must sacrifice a part of his right, it will be a less grievous violation of the laws of equity that the latter should forego an expected advantage, than that the former should suffer a positive loss and detriment. This is the famous distinction de lucro captando, and de damno vitando.

We do not hesitate to include equal treaties of commerce in the number of those that are favourable, since they are in general advantageous, and perfectly conformable to the law of nature. As to alliances made on account of war, Grotius says with reason, that “defensive alliances are more of a favourable nature,—offensive alliances have something in them that approaches nearer to what is burthensome or odious.”

We could not dispense with the preceding brief summary of those discussions, lest we should in this part of our treatise leave a disgusting chasm. They are however but seldom resorted to in modern practice, as sovereigns at present generally take the prudent precaution of explicitly ascertaining the duration of their treaties. They treat for themselves and their successors,—for themselves and their kingdoms,—for perpetuity,—for a certain number of years, &c.—or they treat only for the time of their own reign,—for an affair peculiar to themselves,—for their families, &c.

§191. The obligations and rights resulting from a real treaty pass to the successors.Since public treaties, even those of a personal nature, concluded by a king or by any other sovereign who is invested with sufficient power, are treaties of state, and obligatory on the whole nation (§186), real treaties, which were intended to subsist independently of the person who has concluded them, are undoubtedly binding on his successors; and the obligation which such treaties impose on the state, passes successively to all her rulers as soon as they assume the public authority. The case is the same with respect to the rights acquired by those treaties: they are acquired for the state, and successively pass to her conductors.

It is at present a pretty general custom for the successor to confirm or renew even real alliances concluded by his predecessors: and prudence requires that this precaution should not be neglected, since men pay greater respect to an obligation which they have themselves contracted, than to one which devolves on them from another quarter, or to which they have only tacitly subjected themselves. The reason is, that, in the former case, they consider their word to be engaged, and, in the latter, their conscience alone.

§192. Treaties accomplished once for-all, and perfected.The treaties that have no relation to the performance of reiterated acts, but merely relate to transient and single acts which are concluded at once,—those treaties (unless indeed it be more proper to call them by another name) —those conventions, those compacts, which are accomplished once for all, and not by successive acts,—are no sooner executed than they are completed and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect: nor have we them in view when we inquire whether a treaty be real or personal. Puffendorf 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 tenour. If it is executed upon the spot, there ends the business at once. But if the treaty contains engagements for the performance of successive and reiterated acts, it will still be necessary to examine, according to the rules we have laid down, whether it be in this respect real or personal,—whether the contracting parties intended to bind their successors to the performance of those acts, or only promised them for the time of their own reign. In the same manner, as soon as a right is transferred by a lawful convention, it no longer belongs to the state that has ceded it; the affair is concluded and terminated. But if the successor discovers any flaw in the deed of transfer, and proves it, he is not to be accused of maintaining that the convention is not obligatory on him, and refusing to fulfil it;—he only shews that such convention has not taken place: for a defective and invalid deed is a nullity, and to be considered as having never existed.

§193. Treaties already accomplished on the one part.The third rule given by Puffendorf is no less useless with respect to this question. It is, “that if, after the other ally has already executed something to which he was bound by virtue of the treaty, the king happens to die before he has accomplished in his turn what he had engaged to perform, his successor is indispensably obliged to perform it. For, what the other ally has executed under the condition of receiving an equivalent, having turned to the advantage of the state, or at least having been done with that view, it is clear, that if he does not receive the return for which he had stipulated, he then acquires the same right as a man who has paid what he did not owe; and therefore the successor is obliged to allow him a complete indemnification for what he has done or given, or to make good, on his own part, what his predecessor had engaged to perform.” All this, I say, is foreign to our question. If the alliance is real, it still subsists notwithstanding the death of one of the contracting parties; if it is personal, it expires with them, or either of them (§183). But when a personal alliance comes to be dissolved in this manner, it is quite a different ques-tion to ascertain what one of the allied states is bound to perform, in case the other has already executed something in pursuance of the treaty; and this question is to be determined on very different principles. It is necessary to distinguish the nature of what has been done pursuant to the treaty. If it has been any of those determinate and substantial acts which it is usual with contracting parties mutually to promise to each other in exchange or by way of equivalent, there can be no doubt that he who has received, ought to give what he has promised in return, if he would adhere to the agreement, and is obliged to adhere to it: if he is not bound, and is unwilling to adhere to it, he ought to restore what he has received, to replace things in their former state, or to indemnify the ally from whom he has received the advantage in question. To act otherwise, would be keeping possession of another’s property. In this case, the ally is in the situation, not of a man who has paid what he did not owe, but of one who has paid before-hand 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 opportunity of fulfilling them does not occur,—it is only on occasion likewise that the performance of similar acts is due in return: and when the term of the alliance is expired, neither of the parties remains bound by any obligation. In a defensive alliance, for instance, two kings have reciprocally promised each other a gratuitous assistance during the term of their lives: one of them is attacked: he is succoured by his ally, and dies before he has an opportunity to succour him in his turn: the alliance is at an end, and no obligation thence devolves on the successor of the deceased, except indeed that he certainly owes a debt of gratitude to the sovereign who has given a salutary assistance to his state. And we must not pronounce such an alliance an injurious one to the ally who has given assistance without receiving any. His treaty was one of those speculating contracts in which the advantages or disadvantages wholly depend on chance: he might have gained by it, though it has been his fate to lose.

We might here propose another question. The personal alliance expiring at the death of one of the allies, if the survivor, under an idea that it is to subsist with the successor, fulfils the treaty on his part in favour of the latter, defends his country, saves some of his towns, or furnishes 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 extension of the treaty)—or to pay for the real service he has received, according to a just estimate of its importance, if he does not chuse to continue that alliance. It would be in such a case as this that we might say with Puffendorf, that he who has rendered such a service has acquired the right of a man who has paid what he did not owe.

§194. The personal alliance expires if one of the contracting powers ceases to reign.The duration of a personal alliance being restricted to the persons of the contracting sovereigns,—if, from any cause whatsoever, one of them ceases to reign, the alliance expires: for they have contracted in quality of sovereigns; and he who ceases to reign, no longer exists as a sovereign, though he still lives as a man.

§195. Treaties in their own nature personal.Kings do not always treat solely and directly for their kingdoms; sometimes by virtue of the power they have in their hands, they make treaties relative to their own persons, or their families; and this they may lawfully do, as the welfare of the state is interested in the safety and advantage of the sovereign, properly understood. These treaties are personal in their own nature, and expire of course on the death of the king or the extinction of his family. Such is an alliance made for the defence of a king and his family.

§196. Alliance concluded for the defence of the king and the royal family.It is asked, whether such an alliance subsists with the king and the royal family, when by some revolution they are deprived of the crown? We have remarked above (§194), that a personal alliance expires with the reign of him who contracted it: but that is to be understood of an alliance formed with the state, and restricted, in its duration, to the reign of the contracting king. But the alliance of which we are now to treat is of another nature. Although obligatory on the state, since she is bound by all the public acts of her sovereign, it is made directly in favour of the king and his family; it would therefore be absurd that it should be dissolved at the moment when they stand in need of it, and by the very event which it was intended to guard against. Besides, the king does not forfeit the character of royalty merely by the loss of his kingdom. If he is unjustly despoiled of it by an usurper, or by rebels, he still preserves his rights, among which are to be reckoned his alliances.

But who shall judge whether a king has been dethroned lawfully or by violence? An independent nation acknowledges no judge. If the body of the nation declare that the king has forfeited his right by the abuse he has made of it, and depose him, they may justly do it when their grievances are well founded; and no other power has a right to censure their conduct. The personal ally of this king ought not therefore to assist him against the nation who have made use of their right in deposing him: if he attempts it, he injures that nation. England declared war against Louis XIV. in the year 1688, for supporting the interests of James II. who had been formally deposed by the nation. The same country declared war against him a second time at the beginning of the present century, because that prince acknowledged the son of the deposed monarch, under the title of James III. In doubtful cases, and when the body of the nation has not pronounced, or has not pronounced freely, a sovereign ought naturally to support and defend an ally; and it is then that the voluntary law of nations subsists between different states. The party who have expelled the king, maintain that they have right on their side: the unfortunate prince and his allies flatter themselves with having the same advantage; and as they have no common judge upon earth, there remains no other mode of deciding the contest, than an appeal to arms: they therefore engage in a formal war.

Finally, when the foreign prince has faithfully fulfilled his engagements towards an unfortunate monarch, when he has done, in his defence, or to procure his restoration, every thing which, by the terms of the alliance, he was bound to do,—if his efforts have proved ineffectual, it cannot be expected by the dethroned prince that he shall support an endless war in his favour,—that he shall forever continue at enmity with the nation or the sovereign who has deprived him of the throne. He must at length think of peace, abandon his unfortunate ally, and consider him as having himself abandoned his right through necessity. Thus Louis XIV. was obliged to abandon James II. and to acknowledge king William, though he had at first treated him as an usurper.

§197. Obligation of a real alliance, when the allied king is deposed.The same question presents itself in real alliances, and, in general, in all alliances made with a state, and not in particular with a king, for the defence of his person. An ally ought doubtless to be defended against every invasion, against every foreign violence, and even against his rebellious subjects; in the same manner a republic ought to be defended against the enterprises of one who attempts to destroy the public liberty. But the other party in the alliance ought to recollect that he is the ally and not the judge of the state or the nation. If the nation has deposed her king in form, if the people of a republic have expelled their magistrates, and set themselves at liberty, or, either expressly or tacitly, acknowledged the authority of an usurper,—to oppose these domestic regulations, or to dispute their justice or validity, would be interfering in the government of the nation, and doing her an injury (see §§54, &c. of this book). The ally remains the ally of the state, notwithstanding the change that has happened in it. However, if this change renders the alliance useless, dangerous, or disagreeable to him, he is at liberty to renounce it: for he may upon good grounds assert that he would not have entered into an alliance with that nation, had she been under her present form of government.

To this case we may also apply what we have said above respecting a personal ally. However just the cause of that king may be, who is expelled from the throne either by his subjects or by a foreign usurper, his allies are not obliged to support an eternal war in his favour. After having made ineffectual efforts to reinstate him, they must at length restore to their people the blessings of peace; they must come to an accommodation with the usurper, and for that purpose treat with him as with a lawful sovereign. Louis the Fourteenth, finding himself exhausted by a bloody and unsuccessful war, made an offer at Gertruyden-berg, to abandon his grandson, whom he had placed on the throne of Spain: and afterwards, when the aspect of affairs was changed, Charles of Austria, the rival of Philip, saw himself, in his turn, abandoned by his allies. They grew weary of exhausting their states in order to put him in possession of a crown to which they thought him justly entitled, but which they no longer saw any probability of being able to procure for him.

CHAPTER XIII

Of the Dissolution and Renewal of Treaties.

§198. Expiration of alliances made for a limited time.An alliance is dissolved at the expiration of the term for which it had been concluded. This term is sometimes fixed, as when an alliance is made for a certain number of years; sometimes it is uncertain, as in personal alliances, whose duration depends on the lives of the contracting powers. The term is likewise uncertain, when two or more sovereigns form an alliance with a view to some particular object, as, for instance, that of expelling a horde of barbarous invaders from a neighbouring country,—of reinstating a sovereign on his throne, &c. The duration of such an alliance depends on the completion of the enterprise for which it was formed. Thus, in the last-mentioned instance, when the sovereign is restored, and so firmly seated on his throne, as to be able to retain the undisturbed possession of it, the alliance, which was formed with a sole view to his restoration, is now at an end. But, on the other hand, if the enterprise prove unsuccessful,—the moment his allies are convinced of the impossibility of carrying it into effect, the alliance is likewise at an end: for it is time to renounce an undertaking when it is acknowledged to be impracticable.

§199. Renewal of treaties.A treaty, entered into for a limited time, may be renewed by the common consent of the allies,—which consent may be either expressly or tacitly made known. When the treaty is expressly renewed, it is the same as if a new one were concluded, in all respects similar to the former.

The tacit renewal of a treaty is not to be presumed upon slight grounds: for engagements of so high importance are well entitled to the formality of an express consent. The presumption, therefore, of a tacit renewal must be founded on acts of such a nature as not to admit a doubt of their having been performed in pursuance of the treaty. But, even in this case, still another difficulty arises: for, according to the circumstances and nature of the acts in question, they may prove nothing more than a simple continuation or extension of the treaty,—which is very different from a renewal, especially as to the term of duration. For instance, England has entered into a subsidiary treaty with a German prince, who is to keep on foot, during ten years, a stated number of troops at the disposal of that country, on condition of receiving from her a certain yearly sum. The ten years being expired, the king of England causes the sum stipulated for one year to be paid: the ally receives it: thus the treaty is indeed tacitly continued for one year; but it cannot be said to be renewed; for the transaction of that year does not impose an obligation of doing the same thing for ten years successively. But supposing a sovereign has, in consequence of an agreement with a neighbouring state, paid her a million of money for permission to keep a garrison in one of her strongholds during ten years,—if, at the expiration of that term, the sovereign, instead of withdrawing his garrison, makes his ally a tender of another million, and the latter accepts it, the treaty is, in this case, tacitly renewed.

When the term for which the treaty was made is expired, each of the allies is perfectly free, and may consent or refuse to renew it, as he thinks proper. It must, however, be confessed, that, if one of the parties, who has almost singly reaped all the advantages of the treaty, should, without just and substantial reasons, refuse to renew it now that he thinks he will no longer stand in need of it, and 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 characterise sovereigns, and widely distant from those sentiments of gratitude and friendship that are due to an old and faithful ally. It is but too common to see great potentates, when arrived at the summit of power, neglect those who have assisted them in attaining it.

§200. How a treaty is dissolved, when violated by one of the contracting parties.Treaties contain promises that are perfect and reciprocal. If one of the allies fails in his engagements, the other may compel him to fulfil them:—a perfect promise confers a right to do so. But if the latter has no other expedient than that of arms to force his ally to the performance of his promises, he will sometimes find it more eligible to cancel the promises on his own side also, and to dissolve the treaty. He has undoubtedly a right to do this, since his promises were made only on condition that the ally should on his part execute every thing which he had engaged to perform. The party, therefore, who is offended or injured in those particulars which constitute the basis of the treaty, is at liberty to chuse the alternative of either compelling a faithless ally to fulfil his engagements, or of declaring the treaty dissolved by his violation of it. On such an occasion, prudence and wise policy will point out the line of conduct to be pursued.

§201. The violation of one treaty does not cancel another.But when there exist between allies two or more treaties, different from and independent of each other, the violation of one of those treaties does not directly disengage the injured party from the obligations he has contracted in the others: for the promises contained in these, do not depend on those included in the violated treaty. But the offended ally may, on the breach of one treaty by the other party, threaten him with a renunciation, on his own part, of all the other treaties by which they are united,—and may put his threats in execution if the other disregards them. For if any one wrests or with-holds from me my right, I may, in the state of nature, in order to oblige him to do me justice, to punish him, or to indemnify myself, deprive him also of some of his rights, or seize and detain them till I have obtained complete satisfaction. And if recourse is had to arms in order to obtain satisfaction for the infringement of that treaty, the offended party begins by stripping his enemy of all the rights which had accrued to him from the different treaties subsisting between them: and we shall see, in treating of war, that he may do this with justice.

§202. The violation of one article in a treaty may cancel the whole.Some writers would extend what we have just said to the different articles of a treaty which have no connection with the article that has been violated,—saying we ought to consider those several articles as so many distinct treaties concluded at the same time. They maintain therefore, that if either of the allies violates one article of the treaty, the other has not immediately a right to cancel the entire treaty, but that he may either refuse, in his turn, what he had promised with a view to the violated article, or compel his ally to fulfil his promises if there still remains a possibility of fulfilling them,—if not, to repair the damage; and that for this purpose he may threaten to renounce the entire treaty,—a menace which he may lawfully put in execution, if it be disregarded by the other. Such undoubtedly is the conduct which prudence, moderation, the love of peace, and charity would commonly prescribe to nations. Who will deny this, and madly assert that sovereigns are allowed to have immediate recourse to arms, or even to break every treaty of alliance and friendship, for the least subject of complaint? But the question here turns on the simple right, and not on the measures which are to be pursued in order to obtain justice; and the principle upon which those writers ground their decision, appears to me utterly indefensible. We cannot consider the several articles of the same treaty as so many distinct and independent treaties: for though we do not see any immediate connection between some of those articles, they are all connected by this common relation, viz. that the contracting powers have agreed to some of them in consideration of the others, and by way of compensation. I would perhaps never have consented to this article, if my ally had not granted me another, which in its own nature has no relation to it. Every thing, therefore, which is comprehended in the same treaty, is of the same force and nature as a reciprocal promise, unless where a formal exception is made to the contrary. Grotius very properly observes that “every article of a treaty carries with it a condition, by the non-performance of which, the treaty is wholly cancelled.” 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, and rendering their alliances durable.

§203. The treaty is void by the destruction of one of the contracting powers.In the same manner as a personal treaty expires at the death of the king who has contracted it, a real treaty is dissolved, if one of the allied nations is destroyed,—that is to say, not only if the men who compose it happen all to perish, but also if, from any cause whatsoever, it loses its national quality, or that of a political and independent society. Thus when a state is destroyed and the people are dispersed, or when they are subdued by a conqueror, all their alliances and treaties fall to the ground with the public power that had contracted them. But it is here to be observed, that treaties or alliances which impose a mutual obligation to perform certain acts, and whose existence consequently depends on that of the contracting powers, are not to be confounded with those contracts by which a perfect right is once for all acquired, independent of any mutual performance of subsequent acts. If, for instance, a nation has forever ceded to a neighbouring prince the right of fishing in a certain river, or that of keeping a garrison in a particular fortress, that prince does not lose his rights, even though the nation, from whom he has received them, happens to be subdued, or in any other manner subjected to a foreign dominion. His rights do not depend on the preservation of that nation: she had alienated them; and the conqueror by whom she has been subjugated can only take what belonged to her. In the same manner, the debts of a nation, or those for which the sovereign has mortgaged any of his towns or provinces, are not cancelled by conquest. The king of Prussia, on acquiring Silesia by conquest and by the treaty of Breslau, took upon himself the debts for which that province stood mortgaged to some English merchants. In fact, his conquest extended no further than the acquisition of those rights which the house of Austria had possessed over the country; and he could only take possession of Silesia, such as he found it at the time of the conquest, with all its rights and all its burthens. For a conqueror to refuse to pay the debts of a country he has subdued, would be robbing the creditors, with whom he is not at war.

§204. Alliances of a state that has afterwards put herself under the protection of another.Since a nation or a state, of whatever kind, cannot make any treaty contrary to those by which she is actually bound (§165), she cannot put herself under the protection of another state, without reserving all her alliances, and all her existing treaties. For the convention by which a state places herself under the protection of another sovereign, is a treaty (§175); if she does it of her own accord, she ought to do it in such a manner, that the new treaty may involve no in-fringement of her pre-existing ones. We have seen (§176) what rights a nation derives, in a case of necessity, from the duty of self-preservation.

The alliances of a nation are therefore not dissolved when she puts herself under the protection of another state, unless they be incompatible with the conditions of that protection. The ties by which she was bound to her former allies still subsist, and those allies still remain bound by their engagements to her, as long as she has not put it out of her power to fulfil 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 whatsoever, without excepting their allies,—their former alliances do indeed subsist, so far as they are not incompatible with the new treaty of protection. But if the case should happen, that a former ally enters into a war with the protector, the protected state will be obliged to declare for the latter, to whom she is bound by closer ties, and by a treaty which, in case of collision, is paramount to all the others. Thus the Nepesinians having been obliged to submit to the Etrurians, 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 deditionis, quam societatis, fides sanctior erat, says Livy.

§205. Treaties dissolved by mutual consent.Finally, as treaties are made by the mutual agreement of the parties, they may also be dissolved by mutual consent, at the free will of the contracting powers. And even though a third party should find himself interested in the preservation of the treaty, and should suffer by its dissolution,—yet, if he had no share in making such treaty, and no direct promise had been made to him, those who have reciprocally made promises to each other, which eventually prove advantageous to that third party, may also reciprocally release each other from them, without consulting him, or without his having a right to oppose them. Two monarchs have bound themselves by a mutual promise to unite their forces for the defence of a neighbouring city: that city derives advantage from their assistance; but she has no right to it; and as soon as the two monarchs think proper mutually to dispense with their engagements, she will be deprived of their aid, but can have no reason to complain on the occasion, since no promise had been made to her.

CHAPTER XIV

Of other public Conventions,—of those that are made by subordinate Powers,—particularly of the Agreement called in Latin Sponsio,—and of Conventions of Sovereigns with private Persons.

§206. Conventions made by sovereigns.The public compacts, called conventions, articles of agreement, &c. when they are made between sovereigns, differ from treaties only in their object (§153). What we have said of the validity of treaties, of their execution, of their dissolution, and of the obligations and rights that flow from them, is all applicable to the various conventions which sovereigns may conclude with each other. Treaties, conventions, and agreements, are all public engagements, in regard to which there is but one and the same right, and the same rules. We do not here wish to disgust the reader by unnecessary repetitions: and it were equally unnecessary to enter into an enumeration of the various kinds of these conventions, which are always of the same nature, and differ only in the matter which constitutes their object.

§207. Those made by subordinate powers.But there are public conventions made by subordinate powers, in virtue either of an express mandate from the sovereign, or of the authority with which they are invested by the terms of their commission, and according as the nature of the affairs with which they are intrusted, may admit or require the exercise of that authority.

The appellation of inferior or subordinate powers is given to public persons who exercise some portion of the sovereignty in the name and under the authority of the sovereign: such are magistrates established for the administration of justice, generals of armies, and ministers of state.

When, by an express order from their sovereign on the particular occasion, and with sufficient powers derived from him for the purpose, those persons form a convention, such convention is made in the name of the sovereign himself, who contracts by the mediation and ministry of his delegate or proxy: this is the case we have mentioned in §156.

But public persons, by virtue of their office, or of the commission given to them, have also themselves the power of making conventions on public affairs, exercising on those occasions the right and authority of the sovereign by whom they are commissioned. There are two modes in which they acquire that power:—it is given to them in express terms by the sovereign; or it is naturally derived from their commission itself,—the nature of the affairs with which these persons are intrusted, requiring that they should have a power to make such conventions, especially in cases where they cannot await the or-ders of their sovereign. Thus the governor of a town, and the general who besieges it, have a power to fettle the terms of capitulation: and whatever agreement they thus form within the terms of their commission, is obligatory on the state or sovereign who has invested them with the power by which they conclude it. As conventions of this nature take place principally in war, we shall treat of them more at large in Book III.

§208. Treaties concluded by a public person, without orders from the sovereign, or without sufficient powers.If a public person, an embassador, or a general of an army, exceeding the bounds of his commission, concludes a treaty or a convention without orders from the sovereign, or without being authorised to do it by virtue of his office, the treaty is null, as being made without sufficient powers (§157): it cannot become valid without the express or tacit ratification of the sovereign. The express ratification is a written deed by which the sovereign approves the treaty, and engages to observe it. The tacit ratification is implied by certain steps which the sovereign is justly presumed to take only in pursuance of the treaty, and which he could not be supposed to take without considering it as concluded and agreed upon. Thus, on a treaty of peace being signed by public ministers who have even exceeded the orders of their sovereigns, if one of the sovereigns causes troops to pass on the footing of friends through the territories of his reconciled enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory clause of the treaty, the ratification of the sovereign be required,—as such reservation is usually understood to imply an express ratification, it is absolutely requisite that the treaty be thus expressly ratified before it can acquire its full force.

§209. The agreement called sponsio.By the Latin term, sponsio, we express an agreement relating to affairs of state, made by a public person, who exceeds the bounds of his commission, and acts without the orders or command of the sovereign. The person who treats for the state in this manner without being commissioned for the purpose, promises of course to use his endeavours for prevailing on the state or sovereign to ratify the articles he has agreed to: otherwise his engagement would be nugatory and illusive. The foundation of this agreement can be no other, on either side, than the hope of such ratification.

The Roman history furnishes us with various instances of such agreements:—the one that first arrests our attention is that which was concluded at the Furcae Caudinae,—the most famous instance on record, and one that had been discussed by the most celebrated writers. The consuls Titus Veturius Calvinus and Spurius Postumius, with the Roman army, being inclosed in the defiles of the Furcae Caudinae without hope of escaping, concluded a shameful agreement with the Samnites, —informing them, however, that they could not make a real public treaty (foedus) without orders from the Roman people, without the feciales, and the ceremonies consecrated by custom. The Samnite general contented himself with exacting a promise from the consuls and principal officers of the army, and obliging them to deliver him six hundred hostages; after which, having made the Roman troops lay down their arms, and obliged them to pass under the yoke, he dismissed them. The senate, however, refused to accede to the treaty,—delivered up those who had concluded it to the Samnites, who refused to receive them,—and then thought themselves free from all obligation, and screened from all reproach. Authors have entertained very different sentiments of this conduct. Some assert, that if Rome did not chuse to ratify the treaty, she ought to have replaced things in the same situation they were in before the agreement, by sending back the whole army to their encampment at the Furcae Caudinae; and this the Samnites also insisted upon. I confess that I am not entirely satisfied with the reasonings I have found on this question, even in authors whose eminent superiority I am in other respects fully inclined to acknowledge. Let us therefore endeavour, with the aid of their observations, to set the affair in a new light.

§210. The state is not bound by such an agreement.It presents two questions,—first, what is the person bound to do, who has made an agreement (sponsor), if the state disavows it?—Secondly, what is the state bound to do?—But, previous to the discussion of these questions, it is necessary to observe, with Grotius, that the state is not bound by an agreement of that nature. This is manifest, even from the definition of the agreement called sponsio. The state has not given orders to conclude it: neither has she in any manner whatever conferred the necessary powers for the purpose: she has neither expressly given them by her injunctions or by a plenipotentiary commission, nor tacitly, by a natural or necessary consequence of the authority intrusted to him who makes the agreement (sponsori). The general of an army has, indeed, by virtue of his commission, a power to enter, as circumstances may require, into a private convention,—a compact relative to himself, to his troops, or to the occurrences of war: but he has no power to conclude a treaty of peace. He may bind himself, and the troops under his command, on all the occasions where his functions require that he should have the power of treating; but he cannot bind the state beyond the extent of his commission.

§211. To what the promiser is bound when it is disavowed.Let us now see to what the person promising (sponsor) is bound, when the state disavows the agreement. We ought not here to deduce our arguments from the rules which obtain between private individuals under the law of nature: for the nature of the things in question, and the situation of the contracting parties, necessarily make a difference between the two cases. It is certain that, between individuals, he who purely and simply promises what depends on the will of another, without being authorised to make such promise, is obliged, if the other disavows the transaction, to accomplish himself what he has promised,—to give an equivalent,—to restore things to their former state,—or, finally, to make full compensation to the person with whom he has treated, according to the various circumstances of the case. His promise (sponsio) can be understood in no other light. But this is not the case with respect to a public person, who, without orders and without authority, engages for the performance of his sovereign. The question in such case relates to things that infinitely surpass his power and all his faculties,—things which he can neither execute himself, nor cause to be executed, and for which he cannot offer either an equivalent or a compensation in any wise adequate: he is not even at liberty to give the enemy what he has promised, without authority: finally, it is equally out of his power to restore things entirely to their former state. The party who treats with him cannot expect any thing of this nature. If the promiser has deceived him by saying he was sufficiently authorised, he has a right to punish him. But if, like the Roman consuls at the Furcae Caudinae, the promiser has acted with sincerity, informing him that he had not a power to bind the state by a treaty,—nothing else can be presumed, but that the other party was willing to run the risk of making a treaty that must become void, if not ratified,—hoping that a regard for him who had promised, and for the hostages, would induce the sovereign to ratify what had been thus concluded. If the event deceives his hopes, he can only blame his own imprudence. An eager desire of obtaining peace on advantageous conditions, and the temptation of some present advantages, may have been his only inducements to make so hazardous an agreement. This was judiciously observed by the consul Postumius himself, after his return to Rome. In his speech to the senate, as given to us by Livy, “Your generals,” said he, “and those of the enemy, were equally guilty of imprudence,—we, in incautiously involving ourselves in a dangerous situation,—they, in suffering a victory to escape them, of which the nature of the ground gave them a certainty,—still distrusting their own advantages, and hasting, at any price, to disarm men who were ever formidable while they had arms in their hands. Why did they not keep us shut up in our camp? Why did they not send to Rome, in order to treat for peace, on sure grounds, with the senate and the people?”

It is manifest that the Samnites contented themselves with the hope that the engagement which the consuls and principal officers had entered into, and the desire of saving six hundred knights, left as hostages, would induce the Romans to ratify the agreement,—considering, that, at all events, they should still have those six hundred hostages, with the arms and baggage of the army, and the vain, or rather, as it is proved by its consequences, the fatal glory, of having made them pass under the yoke.

Under what obligation then were the consuls, and all the others who had joined with them in the promise (sponsores)? They themselves judged that they ought to be delivered up to the Samnites. This was not a natural consequence of the agreement (sponsionis); and from the observations above made, it does not appear that a general in such circumstances, having promised things which the promisee well knew to be out of his power, is obliged, on his promise being disavowed, to surrender his own person by way of compensation. But as he has a power expressly to enter into such an engagement, which lies fairly within the bounds of his commission, the custom of those times had doubtless rendered such engagement a tacit clause of the agreement called sponsio, since the Romans delivered up all the sponsores, all those who had promised:—this was a maxim of their fecial law.

If the sponsor has not expressly engaged to deliver himself up, and if established custom does not lay him under an obligation to do so, it would seem that he is bound to nothing further by his promise than honestly to endeavour by every lawful means to induce the sovereign to ratify what he has promised: and there cannot exist a doubt in the case, provided the treaty be at all equitable, advantageous to the state, or supportable in consideration of the misfortune from which it has preserved her. But to set out with the intention of making a treaty the instrument to ward off a deadly blow from the state, and soon after to advise the sovereign to refuse his ratification, not because the treaty is insupportable, but because an advantage may be taken of its having been concluded without authority,—such a proceeding would undoubtedly be a fraudulent and shameful abuse of the faith of treaties. But what must the general do, who, in order to save his army, has been forced to conclude a treaty that is detrimental or dishonourable to the state? Must he advise the sovereign to ratify it?—He will content himself with laying open the motives of his conduct, and the necessity that obliged him to treat; he will shew, as Postumius did, that he alone is bound, and that he consents to be disowned and delivered up for the public safety. If the enemy are deceived, it is through their own folly. Was the general bound to inform them, that, in all probability, his promises would not be ratified? It would be too much to require this of him. In such a case, it is sufficient that he does not impose on the enemy by pretending to more extensive powers than he really possesses, but contents himself with embracing the overtures which they make to him, without on his side holding forth any delusive hopes to decoy them into a treaty. It is the enemy’s business to take all possible precautions for their own security: if they neglect them, why should not the general avail himself of their imprudence, as of an advantage presented to him by the hand of fortune? “It is she,” said Postumius, “who has saved our army after having put it in danger. The enemy’s head was turned in his prosperity; and his advantages have been no more to him than a pleasant dream.”

If the Samnites had only required of the Roman generals and army such engagements as the nature of their situation, and their commission, empowered them to enter into,—if they had obliged them to surrender themselves prisoners of war,—or if, from their inability to hold them all prisoners, they had dismissed them upon their promise not to bear arms against them for some years, in case Rome should refuse to ratify the peace,—the agreement would have been valid, as being made with sufficient powers; and the whole army would have been bound to observe it; for it is absolutely necessary that the troops, or their officers, should have a power of entering into a contract on those occasions, and upon that footing. This is the case of capitulations, of which we shall speak in treating of war.

If the promiser has made an equitable and honourable convention, on an affair of such a nature, that, in case the convention be disallowed, he still has it in his own power to indemnify the party with whom he has treated,—he is presumed to have personally pledged himself for such indemnification; and he is bound to make it, in order to discharge his promise, as did Fabius Maximus in the instance mentioned by Grotius. But there are occasions when the sovereign may forbid him to act in that manner, or to give any thing to the enemies of the state.

§212. To what the sovereign is bound.We have shewn, that a state cannot be bound by an agreement made without her orders, and without her having granted any power for that purpose. But is she absolutely free from all obligation? That is the point which now remains for us to examine. If matters as yet continue in their original situation, the state or the sovereign may simply disavow the treaty, which is of course done away by such disavowal, and becomes as perfect a nullity as if it had never existed. But the sovereign ought to make known his intentions as soon as the treaty comes to his knowledge; not indeed that his silence alone can give validity to a convention which the contracting parties have agreed not to consider as valid without his approbation; but it would be a breach of good-faith in him to suffer a sufficient time to elapse for the other party to execute on his side an agreement which he himself is determined not to ratify.

If any thing has already been done in consequence of the agreement,—if the party, who has treated with the sponsor, has on his side fulfilled his engagements either in the whole or in part,—is the other party, on disavowing the treaty, bound to indemnify him, or restore things to their former situation,—or is he allowed to reap the fruits of the treaty, at the same time that he refuses to ratify it? We should here distinguish the nature of the things that have been executed, and that of the advantages which have thence accrued to the state. He who, having treated with a public person not furnished with sufficient powers, executes the agreement on his side without waiting for its ratification, is guilty of imprudence, and commits an egregious error, into which he has not been led by the state with which he supposes he has contracted. If he has given up any part of his property, the other party is not justifiable in taking advantage of his folly, and retaining possession of what he has so given. Thus, when a state, thinking she has concluded a peace with the enemy’s general, has in consequence delivered up one of her strong places, or given a sum of money, the sovereign of that general is undoubtedly bound to restore what he has received, if he does not chuse to ratify the agreement. To act otherwise would be enriching himself with another’s property, and retaining that property without having any title to it.

But if the agreement has given nothing to the state which she did not before possess,—if, as in that of the Furcae Caudinae, the advantage simply consists in her escape from an impending danger, her preservation from a threatened loss,—such advantage is a boon of fortune, which she may enjoy without scruple. Who would refuse to be saved by the folly of his enemy? And who would think himself obliged to indemnify that enemy for the advantage he had suffered to escape him, when no fraud had been used to induce him to forego that advantage? The Samnites pretended, that if the Romans would not ratify the treaty made by their consuls, they ought to send back the army to the Furcae Caudinae, and restore every thing to its former state. Two tribunes of the people, who had been in the number of the sponsores, and wished to avoid being delivered up, had the assurance to maintain the same doctrine; and some authors have declared themselves of their opinion. What! the Samnites take advantage of conjunctures in order to give law to the Romans, and to wrest from them a shameful treaty,—they are so imprudent as to treat with the consuls who expressly declare themselves unauthorised to contract for the state,—they suffer the Roman army to escape, after having covered them with infamy,—and shall not the Romans take advantage of the folly of an enemy so void of generosity? Must they either ratify a shameful treaty, or restore to that enemy all those advantages which the situation of the ground had given him, but which he had lost merely through his own folly? Upon what principle can such a decision be founded? Had Rome promised any thing to the Samnites? had she prevailed upon them to let her army go, previous to the ratification of the agreement made by the consuls?—If she had received any thing in consequence of that agreement, she would have been bound to restore it, as we have already said, because she would have possessed it without a title, on declaring the treaty null. But she had no share in the conduct of her enemies: she did not contribute to the egregious blunder they had committed; and she might as justly take advantage of it, as generals in war do of the mistakes of an unskilful opponent. Suppose a conqueror, after having concluded a treaty with ministers who have expressly reserved the ratification to their master, should have the imprudence to abandon all his conquests without waiting for such ratification,—must the other, with a foolish generosity, invite him back to take possession of them again, in case the treaty be not ratified?

I confess, however, and freely acknowledge, that if the enemy who suffer an entire army to escape on the faith of an agreement concluded with the general, who is unprovided with sufficient powers, and a simple sponsor,—I confess, I say, that if the enemy have behaved generously,—if they had not availed themselves of their advantages to dictate shameful or too severe conditions,—equity requires that the state should either ratify the agreement, or conclude a new treaty on just and reasonable conditions, abating even of her pretensions as far as the public welfare will allow. For we ought never to abuse the generosity and noble confidence even of an enemy. Puffendorf thinks that the treaty at the Furcae Caudinae contained nothing that was too severe or insupportable. That author seems to make no great account of the shame and ignominy with which it would have branded the whole republic. He did not see the full extent of the Roman policy, which would never permit them, in their greatest distresses, to accept a shameful treaty, or even to make peace on the footing of a conquered nation:—a sublime policy, to which Rome was indebted for all her greatness.

Finally, let us observe, that, when the inferior power has, without orders, and without authority, concluded an equitable and honourable treaty, to rescue the state from an imminent danger,—if the sovereign afterwards, on seeing himself thus delivered, should refuse to ratify the treaty, not because he thinks it a disadvantageous one, but merely through a wish to avoid performing those conditions which were annexed as the price of his deliverance, he would certainly act in opposition to all the rules of honour and equity. This would be a case in which we might apply the maxim, summum jus, summa injuria.

To the example we have drawn from the Roman history, let us add a famous one taken from modern history. The Swiss, dissatisfied with France, entered into an alliance with the emperor against Louis XII. and made an irruption into Burgundy, in the year 1513. They laid siege to Dijon. La Trimouille, who commanded in the place, fearing that he should be unable to save it, treated with the Swiss, and, without waiting for a commission from the king, concluded an agreement, by virtue of which the king of France was to renounce his pretensions to the duchy of Milan, and to pay the Swiss, by settled instalments, the sum of six hundred thousand crowns; whereas the Swiss, on their side, promised nothing further than to return home to their own country,—thus remaining at liberty to attack France again, if they thought proper. They received hostages, and departed. The king was very much dissatisfied with the treaty, though it had saved Dijon, and rescued the kingdom from an imminent and alarming danger; and he refused to ratify it. It is certain that La Trimouille had exceeded the powers he derived from his commission, especially in promising that the king should renounce the duchy of Milan. It is probable indeed that his only view was to rid himself of an enemy whom it was less difficult to over-reach in negotiation than to subdue in battle. Louis was not obliged to ratify and execute a treaty concluded without orders and without authority; and if the Swiss were deceived, they could only blame their own imprudence. But as it manifestly appeared that La Trimouille did not behave towards them with candor and honesty, since he had deceived them on the subject of the hostages, by giving, in that character, men of the meanest rank, instead of four of the most distinguished citizens, as he had promised, —the Swiss would have been justifiable in refusing to make peace without obtaining satisfaction for that act of perfidy, either by the surrender of him who was the author of it, or in some other manner.

§213. Private contracts of the sovereign.The promises, the conventions, all the private contracts of the sovereign, are naturally subject to the same rules as those of private persons. If any difficulties arise on the subject, it is equally conformable to the rules of decorum, to that delicacy of sentiment which ought to be particularly conspicuous in a sovereign, and to the love of justice, to cause them to be decided by the tribunals of the state. And such indeed is the practice of all civilised states that are governed by settled laws.

§214. Contracts made by him with private persons in the name of the state.The conventions and contracts which the sovereign, in his sovereign character and in the name of the state, forms with private individuals of a foreign nation, fall under the rules we have laid down with respect to public treaties. In fact, when a sovereign enters into a contract with one who is wholly independent of him and of the state, whether it be with a private person, or with a nation or sovereign, this circumstance does not produce any difference in the rights of the parties. If the private person who has treated with a sovereign is his subject, the rights of each party in this case also are the same: but there is a difference in the manner of deciding the controversies which may arise from the contract. That private person, being a subject of the state, is obliged to submit his pretensions to the established courts of justice. It is added by some writers on this subject, that the sovereign may rescind those contracts, if they prove inimical to the public welfare. Undoubtedly he may do so, but not upon any principle derived from the peculiar nature of such con-tracts:—it must be either upon the same principle which invalidates even a public treaty when it is ruinous to the state and inconsistent with the public safety,—or by virtue of the eminent domain, which gives the sovereign a right to dispose of the property of the citizens with a view to the common safety. We speak here of an absolute sovereign. It is from the constitution of each state that we are to learn who are the persons, and what is the power, entitled to contract in the name of the state, to exercise the supreme authority, and to pronounce on what the public welfare requires.

§215. They are binding on the nation, and on his successors.When a lawful power contracts in the name of the state, it lays an obligation on the nation itself, and consequently on all the future rulers of the society. When therefore a prince has the power to form a contract in the name of the state, he lays an obligation on all his successors; and these are not less bound than himself to fulfil his engagements.

§216. Debts of the sovereign and the state.The conductor of the nation may have dealings of his own, and private debts; and his private property alone is liable for the discharge of such debts. But loans contracted for the service of the state, debts incurred in the administration of public affairs, are contracts in all the strictness of law, and obligatory on the state and the whole nation, which is indispensably bound to discharge those debts. When once they have been contracted by lawful authority, the right of the creditor is indefeasible. Whether the money borrowed has been turned to the advantage of the state, or squandered in foolish expenses, is no concern of the person who has lent it: he has intrusted the nation with his property; and the nation is bound to restore it to him again: it is so much the worse for her if she has committed the management of her affairs to improper hands.

This maxim, however, has its bounds, founded even on the nature of the thing. The sovereign has not, in general, a power to render the state or body corporate liable for the debts he contracts, unless they be incurred with a view to the national advantage, and in order to enable him to provide for all occurrences. If he is absolute, it belongs to him alone to decide, in all doubtful cases, what the welfare and safety of the state require. But if he should, without necessity, contract debts of immense magnitude and capable of ruining the nation for ever, there could not then exist any doubt in the case: the sovereign has evidently acted without authority; and those who have lent him their money, have imprudently risked it. It cannot be pre-sumed that a nation has ever consented to submit to utter ruin through the caprice and foolish prodigality of her ruler.

As the national debts can only be paid by contributions and taxes,—wherever the sovereign has not been intrusted by the nation with a power to levy taxes and contributions, or, in short, to raise supplies by his own authority,—neither has he a power to render her liable for what he borrows, or to involve the state in debt. Thus the king of England, who has the right of making peace and war, has not that of contracting national debts, without the concurrence of parliament, because he cannot, without their concurrence, levy any money on his people.

§217. Donations of the sovereign.The case is not the same with the donations of the sovereign as with his debts. When a sovereign has borrowed without necessity, or for an unwise purpose, the creditor has intrusted the state with his property; and it is just that the state should restore it to him, if, at the time of the transaction, he could entertain a reasonable presumption that it was to the state he was lending it. But when the sovereign gives away any of the property of the state,—a part of the national domain,—a considerable fief,—he has no right to make such grant except with a view to the public welfare, as a reward for services rendered to the state, or for some other reasonable cause, in which the nation is concerned: if he has made the donation without reason and without a lawful cause, he has made it without authority. His successor, or the state, may at any time revoke such a grant: nor would the revocation be a wrong done to the grantee, since it does not deprive him of any thing which he could justly call his own. What we here advance holds true of every sovereign whom the law does not expressly invest with the free and absolute disposal of the national property: so dangerous a power is never to be founded on presumption.

Immunities and privileges conferred by the mere liberality of the sovereign are a kind of donations, and may be revoked in the same manner, if they prove detrimental to the state. But a sovereign cannot revoke them by his bare authority, unless he be absolute: and even in this case, he ought to be cautious and moderate in the exertion of his power, uniting an equal share of prudence and equity on the occasion. Immunities granted for particular reasons, or with a view to some return, partake of the nature of a burthensome contract, and can only be revoked in case of abuse, or when they become incompatible with the safety of the state. And if they be suppressed on this latter account, an indemnification is due to those who enjoyed them.

CHAPTER XV

Of the Faith of Treaties.

§218. What is sacred among nations.Though we have sufficiently established (§§163 and 164) the indispensable necessity of keeping promises, and observing treaties, the subject is of such importance, that we cannot forbear considering it here in a more general view, as interesting, not only to the contracting parties, but likewise to all nations, and to the universal society of mankind.

Every thing which the public safety renders inviolable is sacred in society. Thus the person of the sovereign is sacred, because the safety of the state requires that he should be in perfect security, and above the reach of violence: thus the people of Rome declared the persons of their tribunes sacred,—considering it as essential to their own safety that their defenders should be screened from all violence, and even exempt from fear. Every thing, therefore, which the common safety of mankind and the peace and security of human society require to be held inviolable, is a thing that should be sacred among nations.

§219. Treaties are sacred between nations.Who can doubt that treaties are in the number of those things that are to be held sacred by nations? By treaties the most important affairs are determined; by them the pretensions of sovereigns are regulated; on them nations are to depend for the acknowledgement of their rights, and the security of their dearest interests. Between bodies politic,—between sovereigns who acknowledge no superior on earth,—treaties are the only means of adjusting their various pretensions,—of establishing fixed rules of conduct,—of ascertaining what they are entitled to expect, and what they have to depend on. But treaties are no better than empty words, if nations do not consider them as respectable engagements,—as rules which are to be inviolably observed by sovereigns, and held sacred throughout the whole earth.

§220. The faith of treaties is sacred.The faith of treaties,—that firm and sincere resolution,—that invariable constancy in fulfilling our engagements,—of which we make profession in a treaty, is therefore to be held sacred and inviolable between the nations of the earth, whose safety and repose it secures: and if mankind be not wilfully deficient in their duty to themselves, infamy must ever be the portion of him who violates his faith.

§221. He who violates his treaties, violates the law of nations.He who violates his treaties, violates at the same time the law of nations; for he disregards the faith of treaties,—that faith which the law of nations declares sacred; and, so far as depends on him, he renders it vain and ineffectual. Doubly guilty, he does an injury to his ally, he does an injury to all nations, and inflicts a wound on the great society of mankind. “On the ob-servance and execution of treaties,” said a respectable sovereign, “depends all the security which princes and states have with respect to each other: and no dependence could henceforward be placed in future conventions, if the existing ones were not to be observed.”

§222. Right of nations against him who disregards the faith of treaties.As all nations are interested in maintaining the faith of treaties, and causing it to be every-where considered as sacred and inviolable, so likewise they are justifiable in forming a confederacy for the purpose of repressing him who testifies a disregard for it,—who openly sports with it,—who violates and tramples it under foot. Such a man is a public enemy who saps the foundations of the peace and common safety of nations. But we should be careful not to extend this maxim to the prejudice of that liberty and independence to which every nation has a claim. When a sovereign breaks his treaties, or refuses to fulfil them, this does not immediately imply that he considers them as empty names, and that he disregards the faith of treaties: he may have good reasons for thinking himself liberated from his engagements; and other sovereigns have not a right to judge him. It is the sovereign who violates his engagements on pretences that are evidently frivolous, or who does not even think it worth his while to allege any pretence whatever, to give a colourable gloss to his conduct, and cast a veil over his want of faith,—it is such a sovereign, who deserves to be treated as an enemy of the human race.

§223. The law of nations violated by the pope.In treating of religion, in the first book of this work, we could not avoid giving several instances of the enormous abuses which the popes formerly made of their authority. There was one in particular, which was equally injurious to all states, and subversive of the law of nations. Several popes have undertaken to break the treaties of sovereigns; they carried their daring audacity so far as to release a contracting power from his engagements, and to absolve him from the oaths by which he had confirmed them. Cesarini, legate of pope Eugenius the Fourth, wishing to break the treaty which Uladislaus king of Poland and Hungary had concluded with the sultan Amurath, pronounced, in the pope’s name, the king’s absolution from his oaths. In those times of ignorance, people thought themselves really bound by nothing but their oaths, and they attributed to the pope the power of absolving them from oaths of every kind. Uladislaus renewed hostilities against the Turks: but that prince, in other respects worthy of a better fate, paid dearly for his perfidy, or rather for his superstitious weakness: he perished, with his army, near Varna: —a loss which was fatal to Christendom, and brought on her by her spiritual head. The following epitaph was written on Uladislaus:

  • Romulidae Cannas, ego Varnam clade notavi.
  • Discite, mortales, non temerare fidem.
  • Me nisi pontifices jussissent rumpere foedus,
  • Non ferret Scythicum Pannonis ora jugum.

Pope John XII. declared null the oath which the emperor Louis of Bavaria, and his competitor Frederic of Austria, had mutually taken when the emperor set the latter at liberty. Philip duke of Burgundy, abandoning the alliance of the English, procured from the pope and the council of Basil an absolution from his oath. And at a time when the revival of letters and the establishment of the reformation should have rendered the popes more circumspect, the legate Caraffa, in order to induce Henry II. of France to a renewal of hostilities, had the audacity to absolve him, in 1556, from the oath he had made to observe the truce of Vaucelles. The famous peace of Westphalia displeasing the pope on many accounts, he did not confine himself to protesting against the articles of a treaty in which all Europe was interested: he published a bull in which, from his own certain knowledge, and full ecclesiastical power, he declared several articles of the treaty null, vain, invalid, iniquitous, unjust, condemned, reprobated, frivolous, void of force and effect, and that nobody was bound to observe them or any of them, though they were confirmed by oath.—Nor was this all:—his holiness, assuming the tone of an absolute master, proceeds thus—And nevertheless, for the greater precaution, and as much as need be, from the same motions, knowledge, deliberations, and plenitude of power, we condemn, reprobate, break, annul, and deprive of all force and effect, the said articles, and all the other things prejudicial to the above, &c. Who does not see, that these daring acts of the popes, which were formerly very frequent, were violations of the law of nations, and directly tended to destroy all the bands that could unite mankind, and to sap the foundations of their tranquillity, or to render the pope sole arbiter of their affairs?

§224. This abuse authorised by princes.But who can restrain his indignation at seeing this strange abuse authorised by princes themselves? In the treaty concluded at Vincennes, between Charles V. king of France, and Robert Stuart king of Scotland, in 1371, it was agreed, that the pope should absolve the Scots from all the oaths they had taken in swearing to a truce with the English, and that he should promise never to absolve the French or Scots from the oaths they were about to make in swearing to the new treaty.

§225. Use of an oath in treaties.The custom, generally received in former times, of swearing to the observance of treaties, had furnished the popes with a pretext for claiming the power of breaking them, by absolving the contracting parties from their oaths. But in the present day, even children know that an oath does not constitute the obligation to keep a promise or a treaty:It does not constitute the obligation. it only gives an additional strength to that obligation, by calling God to bear witness. A man of sense, a man of honour, does not think himself less bound by his word alone, by his faith once pledged, than if he had added the sanction of an oath. Cicero would not have us to make much difference between a perjurer and a liar. “The habit of lying (says that great man) paves the way to perjury. Whoever can be prevailed on to utter a falsehood, may be easily won over to commit perjury: for the man who has once deviated from the line of truth, generally feels as little scruple in consenting to a perjury as to a lie. For, what influence can the invocation of the gods have on the mind of him who is deaf to the voice of conscience? The same punishment, therefore, which heaven has ordained for the perjurer, awaits also the liar: for it is not on account of the formula of words in which the oath is couched, but of the perfidy and villany displayed by the perjurer in plotting harm against his neighbour, that the anger and indignation of the gods is roused.”

The oath does not then produce a new obligation: it only gives additional force to the obligation imposed by the treaty, and in every thing shares the same fate with it. Where the treaty is of its own nature valid and obligatory, the oath (in itself a supererogatory obligation) is so too: but where the treaty is void, the oath is void likewise.

§226. It does not change the nature of obligations.The oath is a personal act; it can therefore only regard the person of him who swears, whether he swears himself, or deputes another to swear in his name. However, as this act does not produce a new obligation, it makes no change in the nature of a treaty. Thus an alliance confirmed by oath is so confirmed only with respect to him who has contracted it: but if it be a real alliance, it survives him, and passes to his successors as an alliance not confirmed by oath.

§227. It gives no pre-eminence to one treaty above another.For the same reason, since the oath can impose no other obligation than that which results from the treaty itself, it gives no pre-eminence to one treaty, to the prejudice of those that are not sworn to. And as, in case of two treaties clashing with each other, the more ancient ally is to be preferred (§167), the same rule should be observed, even though the more recent treaty has been confirmed by an oath. In the same manner, since it is not allowable to engage in treaties inconsistent with existing ones (§165), the circumstance of an oath will not justify such treaties, nor give them sufficient validity to supercede those which are incompatible with them:—if it had such an effect, this would be a convenient mode for princes to rid themselves of their engagements.

§228. It cannot give force to a treaty that is invalid.Thus also an oath cannot give validity to a treaty that is of its own nature invalid,—justify a treaty which is in itself unjust,—or impose any obligation to fulfil a treaty, however lawfully concluded, when an occasion occurs in which the observance of it would be unlawful,—as, for instance, if the ally to whom succours have been promised, undertakes a war that is manifestly unjust. In short, every treaty made for a dishonourable purpose (§161), every treaty prejudicial to the state (§160), or contrary to her fundamental laws (Book I. §265), being in its own nature void,—the oath that may have been added to such a treaty, is void likewise, and falls to the ground together with the covenant which it was intended to confirm.

§229. Asseverations.The asseverations used in entering into engagements are forms of expression intended to give the greater force to promises. Thus, kings promise in the most sacred manner, with good faith, solemnly, irrevocably, and engage their royal word, &c. A man of honour thinks himself sufficiently bound by his word alone: yet these asseverations are not useless, inasmuch as they tend to prove that the contracting parties form their engagements deliberately, and with a knowledge of what they are about. Hence, consequently, the violation of such engagements becomes the more disgraceful. With mankind, whose faith is so uncertain, every circumstance is to be turned to advantage: and since the sense of shame operates more powerfully on their minds than the sentiment of duty, it would be imprudent to neglect this method.

§230. The faith of treaties does not depend on the difference of religion.After what we have said above (§162), it were unnecessary to undertake in this place to prove that the faith of treaties has no relation to the difference of religion, and cannot in any manner depend upon it. The monstrous maxim, that no faith is to be kept with heretics, might formerly raise its head amidst the madness of party, and the fury of superstition: but it is at present generally detested.

§231. Precautions to be taken in wording treaties.If the security of him who stipulates for any thing in his own favour prompts him to require precision, fulness, and the greatest clearness in the expressions,—good faith demands, on the other hand, that each party should express his promises clearly, and without the least ambiguity. The faith of treaties is basely prostituted by studying to couch them in vague or equivocal terms, to introduce ambiguous expressions, to reserve subjects of dispute, to over-reach those with whom we treat, and outdo them in cunning and duplicity. Let the man who excels in these arts boast of his happy talents, and esteem himself a keen nego-tiator: but reason and the sacred law of nature will class him as far beneath a vulgar cheat, as the majesty of kings is exalted above private persons. True diplomatic skill consists in guarding against imposition, not in practising it.

§232. Subterfuges in treaties.Subterfuges in a treaty are not less contrary to good faith. His catholic majesty Ferdinand, having concluded a treaty with the archduke his son-in-law, thought he could evade it by privately protesting against the treaty:—a puerile finesse! which, without giving any right to that prince, only exposed his weakness and duplicity.

§233. An evidently false interpretation inconsistent with the faith of treaties.The rules that establish a lawful interpretation of treaties are sufficiently important to be made the subject of a distinct chapter. For the present let us simply observe that an evidently false interpretation is the grossest imaginable violation of the faith of treaties. He that resorts to such an expedient, either impudently sports with that sacred faith, or sufficiently evinces his inward conviction of the degree of moral turpitude annexed to the violation of it: he wishes to act a dishonest part, and yet preserve the character of an honest man: he is a puritanical impostor who aggravates his crime by the addition of a detestable hypocrisy. Grotius quotes several instances of evidently false interpretations put upon treaties: —the Plateans having promised the Thebans to restore their prisoners, restored them after they had put them to death. Pericles having promised to spare the lives of such of the enemy as laid down their arms, ordered all those to be killed who had iron clasps to their cloaks. A Roman general having agreed with Antiochus to restore him half of his fleet, caused each of the ships to be sawed in two. All these interpretations are as fraudulent as that of Rhadamistus, who, according to Tacitus’s account, having sworn to Mithridates that he would not employ either poison or the steel against him, caused him to be smothered under a heap of clothes.

§234. Faith tacitly pledged.Our faith may be tacitly pledged, as well as expressly: it is sufficient that it be pledged, in order to become obligatory: the manner can make no difference in the case. The tacit pledging of faith is founded on a tacit consent; and a tacit consent is that which is, by fair deduction, inferred from our actions. Thus, as Grotius observes, whatever is included in the nature of certain acts which are agreed upon, is tacitly comprehended in the agreement: or, in other words, every thing which is indispensably necessary to give effect to the articles agreed on, is tacitly granted. If, for instance, a promise is made to a hostile army who have advanced far into the country, that they shall be allowed to return home in safety, it is manifest that they cannot be refused provisions; for they cannot return without them. In the same manner, in demanding or accepting an interview, full security is tacitly promised. Livy justly says, that the Gallo-Greeks violated the law of nations in attacking the consul Manlius at the time when he was repairing to the place of interview to which they had invited him. The emperor Valerian having been defeated by Sapor king of Persia, sent to him to sue for peace. Sapor declared that he wished to treat with the emperor in person; and Valerian having consented to the interview without any suspicion of fraud, was carried off by the perfidious enemy, who kept him a prisoner till his death, and treated him with the most brutal cruelty.

Grotius, in treating of tacit conventions, speaks of those in which the parties pledge their faith by mute signs. But we ought not to confound these two kinds of tacit conventions: for that consent which is sufficiently notified by a sign, is an express consent, as clearly as if it had been signified by the voice. Words themselves are but signs established by custom: and there are mute signs which established custom renders as clear and as express as words. Thus, at the present day, by displaying a white flag, a parley is demanded, as expressly as it could be done by the use of speech. Security is tacitly promised to the enemy who advances upon this invitation.

CHAPTER XVI

Of Securities given for the Observance of Treaties.

§235. Guaranty.Convinced by unhappy experience, that the faith of treaties, sacred and inviolable as it ought to be, does not always afford a sufficient assurance that they shall be punctually observed,—mankind have sought for securities against perfidy,—for methods, whose efficacy should not depend on the good-faith of the contracting parties. A guaranty is one of these means. When those who make a treaty of peace, or any other treaty, are not perfectly easy with respect to its observance, they require the guaranty of a powerful sovereign. The guarantee promises to maintain the conditions of the treaty, and to cause it to be observed. As he may find himself obliged to make use of force against the party who attempts to violate his promises, it is an engagement that no sovereign ought to enter into lightly, and without good reason. Princes indeed seldom enter into it unless when they have an indirect interest in the observance of the treaty, or are induced by particular relations of friendship. The guaranty may be promised equally to all the contracting parties, to some of them, or even to one alone: but it is commonly promised to all in general. It may also happen, when several sovereigns enter into a common alliance, that they all reciprocally pledge themselves to each other, as guarantees for its observance. The guaranty is a kind of treaty, by which assistance and succours are promised to any one, in case he has need of them, in order to compel a faithless ally to fulfil his engagements.

§236. It gives the guarantee no right to interfere unasked in the execution of a treaty.Guaranty being given in favour of the contracting powers, or of one of them, it does not authorise the guarantee to interfere in the execution of the treaty, or to enforce the observance of it, unasked, and of his own accord. If, by mutual consent, the parties think proper to deviate from the tenor of the treaty, to alter some of the articles, or to cancel it altogether,—or if one party be willing to favour the other by a relaxation of any claim,—they have a right to do this, and the guarantee cannot oppose it. Simply bound by his promise to support the party who should have reason to complain of the infraction of the treaty, he has acquired no rights for himself. The treaty was not made for him; for, had that been the case, he would have been concerned, not merely as a guarantee, but as a principal in the contract. This observation is of great importance: for care should be taken, lest, under colour of being a guarantee, a powerful sovereign should render himself the arbiter of the affairs of his neighbours, and pretend to give them laws.

But it is true, that if the parties make any change in the articles of the treaty without the consent and concurrence of the guarantee, the latter is no longer bound to adhere to the guaranty; for the treaty thus changed is no longer that which he guarantied.

§237. Nature of the obligation it imposes.As no nation is obliged to do any thing for another nation, which that other is herself capable of doing, it naturally follows that the guarantee is not bound to give his assistance except where the party to whom he has granted his guaranty is of himself unable to obtain justice.

If there arises any dispute between the contracting parties respecting the sense of any article of the treaty, the guarantee is not immediately obliged to assist him in favour of whom he has given his guaranty. As he cannot engage to support injustice, he is to examine, and to search for the true sense of the treaty, to weigh the pretensions of him who claims his guaranty; and if he finds them ill founded, he may refuse to support them, without failing in his engagements.

§238. The guaranty cannot impair the rights of a third party.It is no less evident that the guaranty cannot impair the rights of any one who is not a party to the treaty. If, therefore, it happens that the guarantied treaty proves derogatory to the rights of those who are not concerned in it,—the treaty being unjust in this point, the guarantee is in no wise bound to procure the performance of it; for, as we have shewn above, he can never have incurred an obligation to support injustice. This was the reason alleged by France, when, notwithstanding her having guarantied the famous pragmatic sanction of Charles VI. she declared for the house of Bavaria, in opposition to the heiress of that emperor. This reason is incontestably a good one, in the general view of it: and the only question to be decided at that time, was, whether the court of France made a just application of it.

Non nostrum 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;—sovereigns sometimes reciprocally guaranty their respective states. But we should rather denominate those transactions treaties of alliance, for the purpose, in the former case, of maintaining that rule of succession,—and, in the latter, of supporting the possession of those states.

§239. Duration of the guaranty.The guaranty naturally subsists as long as the treaty that is the object of it; and in case of doubt, this ought always to be presumed, since it is required, and given, for the security of the treaty. But there is no reason which can naturally prevent its limitation to a certain period,—to the lives of the contracting powers, to that of the guarantee, &c. In a word, whatever we have said of treaties in general, is equally applicable to a treaty of guaranty.

§240. Treaties with surety.When there is question of things which another may do or give as well as he who promises, as for instance, the payment of a sum of money, it is safer to demand a security than a guaranty; for the surety is bound to make good the promise in default of the principal,—whereas the guarantee is only obliged to use his best endeavours to obtain a performance of the promise from him who has made it.

§241. Pawns, securities, and mortgages.A nation may put some of her possessions into the hands of another, for the security of her promises, debts, or engagements. If she thus deposits movable property, she gives pledges. Poland formerly pledged a crown and other jewels to the sovereigns of Prussia. But sometimes towns and provinces are given in pawn. If they are only pledged by a deed which assigns them as security for a debt, they serve as a mortgage: if they are actually put into the hands of the creditor, or of him with whom the affair has been transacted, he holds them as pledges: and if the revenues are ceded to him as an equivalent for the interest of the debt, the transaction is called a compact of antichresis.

§242.A nation’s right over what she holds as a pledge.The right which the possession of a town or province confers upon him who holds it in pledge, extends no further than to secure the payment of what is due to him, or the performance of the promise that has been made to him. He may therefore retain the town or the province in his hands, till he is satisfied; but he has no right to make any change in it; for that town, or that country, does not belong to him as proprietor. He cannot even interfere in the government of it, beyond what is required for his own security, unless the empire, or the exercise of sovereignty, has been expressly made over to him. This last point is not naturally to be presumed, since it is sufficient for the security of the mortgagee, that the country is put into his hands, and under his power. Further, he is obliged, like every other person who has received a pledge, to preserve the country he holds as a security, and, as far as in his power, to prevent its suffering any damage or dilapidation: he is responsible for it; and if the country is ruined through his fault, he is bound to indemnify the state that intrusted him with the possession of it. If the sovereignty is deposited in his hands together with the country itself, he ought to govern it according to its constitution, and precisely in the same manner as the sovereign of the country was obliged to govern it; for the latter could only pledge his lawful right.

§243. How she is obliged to restore it.As soon as the debt is paid, or the treaty is fulfilled, the term of the security expires, and he who holds a town or a province by this title, is bound to restore it faithfully, in the same state in which he received it, so far as this depends on him.

But to those who have no law but their avarice, or their ambition,—who, like Achilles, place all their right in the point of their sword, —a tempting allurement now presents itself: they have recourse to a thousand quibbles, a thousand pretences, to retain an important place, or a country which is conveniently situated for their purposes. The subject is too odious for us to allege examples: they are well enough known, and sufficiently numerous to convince every sensible nation, that it is very imprudent to make over such securities.

§244. How she may appropriate it to herself.But if the debt be not paid at the appointed time, or if the treaty be not fulfilled, what has been given in security, may be retained and appropriated, or the mortgage seized, at least until the debt be discharged, or a just compensation made. The house of Savoy had mortgaged the country of Vaud to the cantons of Bern and Fribourg; and those two cantons, finding that no payments were made, had recourse to arms, and took possession of the country. The duke of Savoy, instead of immediately satisfying their just demands, opposed force to force, and gave them still further grounds of complaint: wherefore the cantons, finally successful in the contest, have since retained possession of that fine country, as well for the payment of the debt, as to defray the expenses of the war, and to obtain a just indemnification.

§245. Hostages.Finally, there is, in the way of security, another precaution, of very ancient institution, and much used among nations,—which is, to require hostages. These are persons of consequence, delivered up by the promising party, to him with whom he enters into an engagement, and to be detained by the latter until the performance of the promises which are made to him. In this case, as well as in those above mentioned, the transaction is a pignorary contract, in which free men are delivered up, instead of towns, countries, or jewels. With respect to this contract, therefore, we may confine ourselves to those particular observations which the difference of the things pledged renders necessary.

§246. What right we have over hostages.The sovereign who receives hostages, has no other right over them, than that of securing their persons, in order to detain them till the entire accomplishment of the promises of which they are the pledge. He may therefore take precautions to prevent their escaping from him: but those precautions should be moderated by humanity, towards men whom he has no right to use ill; and they ought not to be extended beyond what prudence requires.

It is pleasing to behold the European nations in the present age content themselves with the bare parole of their hostages. The English noblemen who were sent to France in that character in pursuance of the treaty of Aix-la-Chapelle, in 1748, to stay till the restitution of Cape Breton, were solely bound by their word of honour, and lived at court, and at Paris, rather as ministers of their nation, than as hostages.

§247. Their liberty alone is pledged.The liberty of the hostages is the only thing pledged: and if he who has given them breaks his promise, they may be detained in captivity. Formerly they were in such cases put to death;—an inhuman cruelty, founded on an error. It was imagined that the sovereign might arbitrarily dispose of the lives of his subjects, or that every man was the master of his own life, and had a right to stake it as a pledge when he delivered himself up as an hostage.

§248. When they are to be sent back.As soon as the engagements are fulfilled, the cause for which the hostages were delivered no longer subsists: they then immediately become free, and ought to be restored without delay. They ought also to be restored, if the reason for which they were demanded does not take place: to detain them then, would be to abuse the sacred faith upon which they were delivered. The perfidious Christiern II. king of Denmark, being delayed by contrary winds before Stockholm, and, together with his whole fleet, ready to perish with famine, made proposals of peace: whereupon, the administrator, Steno, imprudently trusting to his promises, furnished the Danes with provisions, and even gave Gustavus and six other noblemen as hostages for the safety of the king, who pretended to have a desire to come on shore: but, with the first fair wind, Christiern weighed anchor, and carried off the hos-tages; thus repaying the generosity of his enemy by an infamous act of treachery.

§249. Whether they may be detained on any other account.Hostages being delivered on the faith of treaties, and he who receives them, promising to restore them, as soon as the promise, of which they are the surety, shall be fulfilled,—such engagements ought to be literally accomplished: and the hostages should be really and faithfully restored to their former condition, as soon as the accomplishment of the promise has disengaged them. It is therefore not allowable to detain them for any other cause; and I am astonished to find that some learned writers teach a contrary doctrine. They ground their opinion upon the principle which authorises a sovereign to seize and detain the subjects of another state in order to compel their rulers to do him justice. The principle is true; but the application is not just. These authors seem to have overlooked the circumstance, that, were it not for the faith of the treaty by virtue of which the hostage has been delivered, he would not be in the power of that sovereign, nor exposed to be so easily seized; and that the faith of such a treaty does not allow the sovereign to make any other use of his hostage than that for which he was intended, or to take advantage of his detention beyond what has been expressly stipulated. The hostage is delivered for the security of a promise, and for that alone. As soon, therefore, as the promise is fulfilled, the hostage, as we have just observed, ought to be restored to his former condition. To tell him that he is released as a hostage, but detained as a pledge for the security of any other pretension, would be taking advantage of his situation as a hostage, in evident violation of the spirit and even the letter of the convention, according to which, as soon as the promise is accomplished, the hostage is to be restored to himself and his country, and reinstated in his pristine rank, as if he had never been a hostage. Without a rigid adherence to this principle, it would no longer be safe to give hostages, since princes might on every occasion easily devise some pretext for detaining them. Albert the Wise, duke of Austria, making war against the city of Zurich in the year 1351, the two parties referred the decision of their disputes to arbitrators, and Zurich gave hostages. The arbitrators passed an unjust sentence, dictated by partiality. Zurich, nevertheless, after having made a well-grounded complaint on the subject, determined to submit to their decision. But the duke formed new pretensions, and detained the hostages, contrary to the faith of the compromise, and in evident contempt of the law of nations.

§250. They may be detained for their own actions.But a hostage may be detained for his own actions, for crimes committed, or debts contracted in the country while he is in hostage there. This is no violation of the faith of the treaty. In order to be sure of recovering his liberty according to the terms of the treaty, the hostage must not claim a right to commit, with impunity, any outrages against the nation by which he is kept; and when he is about to depart, it is just that he should pay his debts.

§251. Of the support of hostages.It is the party who gives the hostages, that is to provide for their support; for it is by his order, and for his service, that they are in hostage. He who receives them for his own security is not bound to defray the expense of their subsistence, but simply that of their custody if he thinks proper to set a guard over them.

§252.A subject cannot refuse to be a hostage.The sovereign may dispose of his subjects for the service of the state; he may therefore give them also as hostages; and the person who is nominated for that purpose, is bound to obey, as he is on every other occasion when commanded for the service of his country. But as the expenses ought to be borne equally by the citizens, the hostage is entitled to be defrayed and indemnified at the public charge.

It is, evidently, a subject alone, who can be given as a hostage against his will. With a vassal, the case is otherwise. What he owes to the sovereign, is determined by the conditions of his fief; and he is bound to nothing more. Accordingly, it is a decided point that a vassal cannot be constrained to go as a hostage, unless he be at the same time a subject.

Whoever has a power to make treaties or conventions, may give and receive hostages. For this reason, not only the sovereign, but also the subordinate authorities, have a right to give hostages in the agreements they make, according to the powers annexed to their office, and the extent of their commission. The governor of a town, and the besieging general, give and receive hostages for the security of the capitulation: whoever is under their command, is bound to obey, if he is nominated for that purpose.

§253. Rank of the hostages.Hostages ought naturally to be persons of consequence, since they are required as a security. Persons of mean condition would furnish but a feeble security, unless they were given in great numbers. Care is commonly taken to settle the rank of the hostages that are to be delivered; and the violation of a compact in this particular is a flagrant dereliction of good-faith and honour. It was a shameful act of perfidy in La Trimouille to give the Swiss only hostages from the dregs of the people, instead of four of the principle citizens of Dijon, as had been stipulated in the famous treaty we have mentioned above (§212). Sometimes the principal persons of the state, and even princes, are given in hostage. Francis I. gave his own sons as security for the treaty of Madrid.

§254. They ought not to make their escape.The sovereign who gives hostages ought to act ingenuously in the affair,—giving them in reality as pledges of his word, and consequently with the intention that they should be kept till the entire accomplishment of his promise. He cannot therefore approve of their making their escape: and if they take such a step, so far from harbouring them, he is bound to send them back. The hostage, on his side, conformably to the presumed intention of his sovereign, ought faithfully to remain with him to whom he is delivered, without endeavouring to escape. Cloelia made her escape from the hands of Porsenna, to whom she had been delivered as a hostage: but the Romans sent her back, that they might not incur the guilt of violating the treaty.

§255. Whether a hostage who dies is to be replaced.If the hostage happens to die, he who has given him is not obliged to replace him, unless this was made a part of the agreement. The hostage was a security required of him: that security is lost without any fault on his side; and there exists no reason why he should be obliged to give another.

§256. Of him who takes the place of a hostage.If any one substitutes himself for a time in the place of a hostage, and the hostage happens in the interim to die a natural death, the substitute is free: for in this case, things are to be replaced in the same situation in which they would have been if the hostage had not been permitted to absent himself, and substitute another in his stead: and for the same reason, the hostage is not free by the death of him who has taken his place only for a time. It would be quite the contrary, if the hostage had been exchanged for another: the former would be absolutely free from all engagement; and the person who had taken his place would alone be bound.

§257.A hostage succeeding to the crown.If a prince, who has been given in hostage, succeeds to the crown, he ought to be released on the delivery of another sufficient hostage, or a number of others, who shall together constitute an aggregate security equivalent to that which he himself afforded when he was originally given. This is evident from the treaty itself, which did not import that the king should be a hostage. The detention of the king’s person by a foreign power is a thing of too interesting a nature to admit a presumption that the state had intended to expose herself to the consequences of such an event. Good-faith ought to preside in all conventions; and the manifest or justly presumed intention of the contracting parties ought to be adhered to. If Francis I. had died after having given his sons as hostages, certainly the dauphin should have been released: for he had been delivered only with a view of restoring the king to his kingdom; and if the emperor had detained him, that view would have been frustrated, since the king of France would still have been a captive. It is evident that, in this reasoning, I proceed on the supposition that no violation of the treaty has taken place on the part of the state which has given a prince in hostage. In case that state had broken its promise, advantage might reasonably be taken of an event which rendered the hostage still more valuable, and his release the more necessary.

§258. The liability of the hostage ends with the treaty.The liability of a hostage, as that of a city or a country, expires with the treaty which it was intended to secure (§§243, 248): and consequently if the treaty is personal, the hostage is free at the moment when one of the contracting powers happens to die.

§259. The violation of the treaty is an injury done to the hostages.The sovereign who breaks his word after having given hostages, does an injury not only to the other contracting power, but also to the hostages themselves. For though subjects are indeed bound to obey their sovereign who gives them in hostage, that sovereign has not a right wantonly to sacrifice their liberty, and expose their lives to danger without just reasons. Delivered up as a security for their sovereign’s promise, not for the purpose of suffering any harm,—if he entails misfortune on them by violating his faith, he covers himself with double infamy. Pawns and mortgages serve as securities for what is due; and their acquisition indemnifies the party to whom the other fails in his engagements. Hostages are rather pledges of the faith of him who gives them; and it is supposed that he would abhor the idea of sacrificing innocent persons. But if particular conjunctures oblige a sovereign to abandon the hostages,—if, for example, the party who has received them violates his engagements in the first instance, and, in consequence of his violation, the treaty can no longer be accomplished without exposing the state to danger,—no measure should be left untried for the delivery of those unfortunate hostages; and the state cannot refuse to compensate them for their sufferings, and to make them amends, either in their own persons, or in those of their relatives.

§260. The fate of the hostage, when he who has given him fails in his engagements.At the moment when the sovereign, who has given the hostage, has violated his faith, the latter ceases to retain the character of a hostage, and becomes a prisoner to the party who had received him, and who has now a right to detain him in perpetual captivity. But it becomes a generous prince to refrain from an exertion of his rights at the expense of an innocent individual. And as the hostage is no longer bound by any tie to his own sovereign who has perfidiously abandoned him,—if he chooses to transfer his allegiance to the prince who is now the arbiter of his fate, the latter may acquire a useful subject, instead of a wretched prisoner, the troublesome object of his commiseration. Or he may liberate and dismiss him, on settling with him the conditions.

§261. Of the right founded on custom.We have already observed that the life of a hostage cannot be lawfully taken away on account of the perfidy of the party who has delivered him. The custom of nations, the most constant practice, cannot justify such an instance of barbarous cruelty, repugnant to the law of nature. Even at a time when that dreadful custom was but too much authorised, the great Scipio publicly declared that he would not suffer his vengeance to fail on innocent hostages, but on the persons themselves who had incurred the guilt of perfidy, and that he was incapable of punishing any but armed enemies. The emperor Julian made the same declaration. All that such a custom can produce, is impunity among the nations who practise it. Whoever is guilty of it cannot complain that another is so too: but every nation may and ought to declare, that she considers the action as a barbarity injurious to human nature.

CHAPTER XVII

Of the Interpretation of Treaties.

§262. Necessity of establishing rules of interpretation.If the ideas of men were always distinct and perfectly determinate,—if, for the expression of those ideas, they had none but proper words, no terms but such as were clear, precise, and susceptible only of one sense,—there would never be any difficulty in discovering their meaning in the words by which they intended to express it: nothing more would be necessary, than to understand the language. But, even on this supposition, the art of interpretation would still not be useless. In concessions, conventions, and treaties, in all contracts, as well as in the laws, it is impossible to foresee and point out all the particular cases that may arise: we decree, we ordain, we agree upon certain things, and express them in general terms; and though all the expressions of a treaty should be perfectly clear, plain, and determinate, the true interpretation would still consist in making, in all the particular cases that present themselves, a just application of what has been decreed in a general manner. But this is not all:—conjunctures vary, and produce new kinds of cases, that cannot be brought within the terms of the treaty or the law, except by inferences drawn from the general views of the contracting parties, or of the legislature. Between different clauses, there will be found contradictions and inconsistencies, real or apparent; and the question is, to reconcile such clauses, and point out the path to be pursued. But the case is much worse if we consider that fraud seeks to take advantage even of the imperfection of language, and that men designedly throw obscurity and ambiguity into their treaties, in order to be provided with a pretence for eluding them upon occasion. It is therefore necessary to establish rules founded on reason, and authorised by the law of nature, capable of diffusing light over what is obscure, of determining what is uncertain, and of frustrating the views of him who acts with duplicity in forming the compact. Let us begin with those that tend particularly to this last end,—with those maxims of justice and equity which are calculated to repress fraud, and to prevent the effect of its artifices.

§263.1st General maxim: it is not allowable to interpret what has no need of interpretation.The first general maxim of interpretation is, that It is not allowable to interpret what has no need of interpretation. When a deed is worded in clear and precise terms,—when its meaning is evident, and leads to no absurd conclusion,—there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures in order to restrict or extend it, is but an attempt to elude it. If this dangerous method be once admitted, there will be no deed which it will not render useless. However luminous each clause may be,—however clear and precise the terms in which the deed is couched,—all this will be of no avail, if it be allowed to go in quest of extraneous arguments to prove that it is not to be understood in the sense which it naturally presents.

§264.2d General maxim: if he who could and ought to have explained himself, has not done it, it is to his own detriment.Those cavillers, who dispute the sense of a clear and determinate article, are accustomed to seek their frivolous subterfuges in the pretended intentions and views which they attribute to its author. It would be very often dangerous to enter with them into the discussion of those supposed views, that are not pointed out in the piece itself. The following rule is better calculated to foil such cavillers, and will at once cut short all chicanery:—If he who could and ought to have explained himself clearly and fully, has not done it, it is the worse for him: he cannot be allowed to introduce subsequent restrictions which he has not expressed. This is a maxim of the Roman law: Pactionem obscuram iis nocere, in quorum fuit potesiate legem apertius conscribere. The equity of this rule is glaringly obvious, and its necessity is not less evident. There will be no security in conventions, no stability in grants or concessions, if they may be rendered nugatory by subsequent limitations, which ought to have been originally specified in the deed, if they were in the contemplation of the contracting parties.

§265.3d General maxim: neither of the contracting parties has a right to interpret the treaty according to his own fancy.The third general maxim, or principle, on the subject of interpretation is, that Neither the one nor the other of the parties interested in the contract has a right to interpret the deed or treaty according to his own fancy. For if you are at liberty to affix whatever meaning you please to my promise, you will have the power of obliging me to do whatever you choose, contrary to my intention, and beyond my real engagements: and on the other hand, if I am allowed to explain my promises as I please, I may render them vain and illusory, by giving them a meaning quite different from that which they presented to you, and in which you must have understood them at the time of your accepting them.

§266.4th General maxim: what is sufficiently declared, is to be taken for true.On every occasion when a person could and ought to have made known his intention, we assume for true against him what he has sufficiently declared. This is an incontestable principle, applied to treaties; for if they are not a vain play of words, the contracting parties ought to express themselves in them with truth, and according to their real intentions. If the intention which is sufficiently declared were not to be taken of course as the true intention of him who speaks and enters into engagements, it would be perfectly useless to form contracts or treaties.

§267. We ought to attend rather to the words of the person promising, than to those of the party stipulating.But it is here asked, which of the contracting parties ought to have his expressions considered as the more decisive, with respect to the true meaning of the contract,—whether we should lay a greater stress on the words of him who makes the promise than on those of the party who stipulates for its performance?—As the force and obligation of every contract arises from a perfect promise,—and the person who makes the promise is no further engaged than his will is sufficiently declared,—it is very certain, that, in order to discover the true meaning of the contract, attention ought principally to be paid to the words of the promising party. For he voluntarily binds himself by his words; and we take for true against him, what he has sufficiently declared. This question seems to have originated from the manner in which conventions are sometimes made: the one party offers the conditions, and the other accepts them; that is to say, the former proposes what he requires that the other shall oblige himself to perform, and the latter declares the obligations into which he really enters. If the words of him who accepts the conditions bear relation to the words of him who offers them, it is certainly true that we ought to lay our principal stress on the expressions of the latter; but this is because the person promising is considered as merely repeating them in order to form his promise. The capitulations of besieged towns may here serve us for an example. The besieged party proposes the conditions on which he is willing to surrender the place: the besieger accepts them: the expressions of the former lay no obligation on the latter, unless so far as he adopts them. He who accepts the conditions is in reality the promising party; and it is in his words that we ought to seek for the true meaning of the articles, whether he has himself chosen and formed his expressions, or adopted those of the other party by referring to them in his promise. But still we must bear in mind the maxim above laid down, viz. that what he has sufficiently declared, is to be taken as true against him. I proceed to explain myself more particularly on this subject.

§268.5th General maxim: the interpretation ought to be made according to certain rules.In the interpretation of a treaty, or of any other deed whatsoever, the question is, to discover what the contracting parties have agreed upon,—to determine precisely, on any particular occasion, what has been promised and accepted,—that is to say, not only what one of the parties intended to promise, but also what the other must reasonably and candidly have supposed to be promised to him,—what has been sufficiently declared to him, and what must have influenced him in his acceptance. Every deed, therefore, and every treaty, must be interpreted by certain fixed rules calculated to determine its meaning, as naturally understood by the parties concerned, at the time when the deed was drawn up and accepted. This is a fifth principle.

As these rules are founded on right reason, and are consequently approved and prescribed by the law of nature, every man, every sovereign, is obliged to admit and to follow them. Unless certain rules be admitted for determining the sense in which the expressions are to be taken, treaties will be only empty words; nothing can be agreed upon with security, and it will be almost ridiculous to place any dependence on the effect of conventions.

§269. The faith of treaties lays an obligation to follow these rules.But as sovereigns acknowledge no common judge, no superior that can oblige them to adopt an interpretation founded on just rules, the faith of treaties constitutes, in this respect, all the security of the contracting powers. That faith is no less violated by a refusal to admit an evidently fair interpretation, than by an open infraction. It is the same injustice, the same want of good-faith; nor is its turpitude rendered less odious by being cloaked up in the subtilties of fraud.

§270. General rule of interpretation.Let us now enter into the particular rules on which the interpretation ought to be formed, in order to be just and fair. Since the sole object of the lawful interpretation of a deed ought to be the discovery of the thoughts of the author or authors of that deed,—whenever we meet with any obscurity in it, we are to consider what probably were the ideas of those who drew up the deed, and to interpret it accordingly. This is the general rule for all interpretations. It particularly serves to ascertain the meaning of particular expressions whose signification is not sufficiently determinate. Pursuant to this rule, we should take those expressions in their utmost latitude when it seems probable that the person speaking had in contemplation every thing which, in that extensive sense, they are capable of designating: and, on the other hand, we ought to restrict their meaning, if the author appears to have confined his idea to what they comprehend in their more limited signification. Let us suppose that a husband has bequeathed to his wife all his money. It is required to know whether this expression means only his ready money, or whether it extends also to that which is lent out, and is due on notes and other securities. If the wife is poor,—if she was beloved by her husband,—if the amount of the ready money be inconsiderable, and the value of the other property greatly superior to that of the money both in specie and in paper,—there is every reason to presume that the husband meant to bequeath to her as well the money due to him as that actually contained in his coffers. On the other hand, if the woman be rich,—if the amount of the ready specie be very considerable, and the money due greatly exceeds in value all the other property,—the probability is, that the husband meant to bequeath to his wife his ready money only.

By the same rule, we are to interpret a clause in the utmost latitude that the strict and appropriate meaning of the words will admit, if it appears that the author had in view every thing which that strict and appropriate meaning comprehends: but we must interpret it in a more limited sense when it appears probable that the author of the clause did not mean to extend it to every thing which the strict propriety of the terms might be made to include. As for instance, a father, who has an only son, bequeaths to the daughter of his friend all his jewels. He has a sword enriched with diamonds, given him by a sovereign prince. In this case it is certainly very improbable that the testator had any intention of making over that honourable badge of distinction to a family of aliens. That sword, therefore, together with the jewels with which it is ornamented, must be excepted from the legacy, and the meaning of the words be restricted to his other jewels. But if the testator has neither son nor heir of his own name, and bequeaths his property to a stranger, there is no reason to limit the signification of the terms; they should be taken in their full import, it being probable that the testator used them in that sense.

§271. The terms are to be explained conformably to common usage.The contracting parties are obliged to express themselves in such manner that they may mutually understand each other. This is evident from the very nature of the transaction. Those who form the contract, concur in the same intentions; they agree in desiring the same thing; and how shall they agree in this instance, if they do not perfectly understand each other? Without this, their contract will be no better than a mockery or a snare. If then they ought to speak in such a manner as to be understood, it is necessary that they should employ the words in their proper signification,—the signification which common usage has affixed to them,—and that they annex an established meaning to every term, every expression, they make use of. They must not, designedly and without mentioning it, deviate from the common usage and the appropriate meaning of words: and it is presumed that they have conformed to established custom in this particular, as long as no cogent reasons can be adduced to authorise a presumption to the contrary; for the presumption is, in general, that things have been done as they ought. From all these incontestable truths, results this rule: In the interpretation of treaties, compacts, and promises, we ought not to deviate from the common use of the language, unless we have very strong reasons for it. In all human affairs, where absolute certainty is not at hand to point out the way, we must take probability for our guide. In most cases, it is extremely probable that the parties have expressed themselves conformably to the established usage: and such probability ever affords a strong presumption, which cannot be over-ruled but by a still stronger presumption to the contrary. 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 declared in the most unambiguous manner.

§272. Interpretation of ancient treaties.The usage we here speak of, is that of the time when the treaty, or the deed, of whatever kind, was drawn up and concluded. Languages incessantly vary, and the signification and force of words changes with time. When, therefore, an ancient deed is to be interpreted, we should be acquainted with the com-mon use of the terms at the time when it was written; and that knowledge is to be acquired from deeds of the same period, and from contemporary writers, by diligently comparing them with each other. This is the only source from which to derive any information that can be depended 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 import of a word in common usage, would furnish but a vain theory, equally useless and destitute of proof.

§273. Of quibbles on words.Words are only designed to express the thoughts; thus the true signification of an expression, in common use, is the idea which custom has affixed to that expression. It is then a gross quibble to affix a particular sense to a word, in order to elude the true sense of the entire expression. Mahomet, emperor of the Turks, at the taking of Negropont, having promised a man to spare his head, caused him to be cut in two through the middle of the body. Tamerlane, after having engaged the city of Sebastia to capitulate under his promise of shedding no blood, caused all the soldiers of the garrison to be buried alive: gross subterfuges which, as Cicero remarks, only serve to aggravate the guilt of the perfidious wretch who has recourse to them. To spare the head of any one, and to shed no blood, are expressions, which, according to common custom, and especially on such an occasion, manifestly imply to spare the lives of the parties.

§274.A rule on this subject.All these pitiful subtilties are overthrown by this unerring rule: When we evidently see what is the sense that agrees with the intention of the contracting parties, it is not allowable to wrest their words to a contrary meaning. The intention, sufficiently known, furnishes the true matter of the convention,—what is promised and accepted, demanded and granted. A violation of the treaty is rather a deviation from the intention 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.

§275. Mental reservations.Is it necessary, in an enlightened age, to say that mental reservations cannot be admitted in treaties? This is manifest, since, by the very nature of the treaty, the parties are bound to express themselves in such manner that they may mutually understand each other (§271). There is scarcely 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.

§276. Interpretation of technical terms.Technical terms, or terms peculiar to the arts and sciences, ought commonly to be interpreted according to the definition given of them by masters of the art, or persons versed in the knowledge of the art or science to which the terms belong. I say commonly; for this rule is not so absolute, but that we may and even ought to deviate from it, when we have good reasons for such deviation; as, for instance, if it were proved that he who speaks in a treaty, or in any other deed, did not understand the art or science from which he borrowed the term,—that he was unacquainted with its import as a technical word,—that he employed it in a vulgar acceptation, &c.

§277. Of terms whose signification admits of degrees.If, however, the technical or other terms relate to things that admit of different degrees, we ought not scrupulously to adhere to definitions, but rather to take the terms in a sense agreeable to the context: for, a regular definition describes a thing in its most perfect state; and yet it is certain that we do not always mean it in that state of its utmost perfection, whenever we speak of it. Now the interpretation should only tend to the discovery of the will of the contracting parties (§268): to each term, therefore, we should affix that meaning, which the party whose words we interpret, probably had in contemplation. Thus, when the parties in a treaty have agreed to submit their pretensions to the decision of two or three able civilians, it would be ridiculous to endeavour to elude the compromise, under the pretence that we can find no civilian accomplished in every point, or to strain the terms so far as to reject all who do not equal Cujas or Grotius. Would he who had stipulated for the assistance of ten thousand good troops have any reason to insist upon soldiers of whom the very worst should be comparable to the veterans of Julius Caesar? And if a prince had promised his ally a good general, must he send him none but a Marlborough or a Turenne?

§278. Of figurative expressions.There are figurative expressions that are become so familiar in the common use of language, that, in numberless instances, they supply the place of proper terms, so that we ought to take them in a figurative sense, without paying any attention to their original, proper, and direct signification: the subject of the discourse sufficiently indicates the meaning that should be affixed to them. To hatch a plot, to carry fire and sword into a country, are expressions of this sort; and there scarcely can occur an instance where it would not be absurd to take them in their direct and literal sense.

§279. Of equivocal expressions.There is not perhaps any language that does not also contain words which signify two or more different things, and phrases which are susceptible of more than one sense. Thence arises ambiguity in discourse. The contracting parties ought carefully to avoid it. Designedly to use it with a view to elude their engagements in the sequel, is downright perfidy, since the faith of treaties obliges the contracting parties to express their intentions clearly (§271). But if an ambiguous expression has found its way into a deed, it is the part of the interpreter to clear up any doubt thereby occasioned.

§280. The rule for these two cases.The following is the rule that ought to direct the interpretation in this as well as in the preceding case: We ought always to affix such meaning to the expressions, as is most suitable to the subject or matter in question. For, by a true interpretation, we endeavour to discover the thoughts of the persons speaking, or of the contracting parties in a treaty. Now it ought to be presumed that he who has employed a word which is susceptible of many different significations, has taken it in that which agrees with his subject. In proportion as he employs his attention on the matter in question, the terms proper to express his thoughts present themselves to his mind; this equivocal word could therefore only present itself in the sense proper to express the thought 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 subject is not that which corresponds with the intention of the person speaking. We have already observed, that whenever a man can and ought to make known his intention, we assume for true against him what he has sufficiently declared (§266). And as good-faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them. Let us illustrate this rule by examples. The word day is understood of the natural day, or the time during 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 convention to point out a space of time, the subject itself manifestly shews that the parties mean the civil day, or the term of twenty-four hours. It was therefore a pitiful subterfuge, or rather a notorious perfidy, in Cleomenes, when, having concluded a truce of some days with the people of Argos, and finding them asleep on the third night in reliance on the faith of the treaty, he killed a part of their number, and made the rest prisoners, alleging that the nights were not comprehended in the truce. The word steel may be understood of the metal itself, or of certain instruments made of it:—in a convention which stipulates that the enemy shall lay down their steel, it evidently means their weapons: wherefore Pericles, in the example related above (§233), gave a fraudulent interpretation to those words, since it was contrary to what the nature of the subject manifestly pointed out. Q. Fabius Labeo, of whom we made mention in the same section, shewed 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 him, undoubtedly means that the other party shall restore to him vessels which he can make use of, and not the half of each vessel, when sawed into two. Pericles and Fabius are also condemned by the rule established above (§274), which forbids us to wrest the sense of the words contrary to the evident intention of the contracting parties.

§281. Not necessary to give a term the same sense everywhere in the same deed.If any one of those expressions which are susceptible of different significations occurs more than once in the same piece, we cannot make it a rule to take it every-where in the same signification. For we must, conformably to the preceding rule, take such expression, in each article, according as the 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 condition 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.

§282. We ought to reject every interpretation that leads to an absurdity;Every interpretation that leads to an absurdity, ought to be rejected; or, in other words, we should not give to any piece a meaning from which any absurd consequences would follow, but must interpret it in such a manner as to avoid absurdity. As it is not to be presumed that any one means what is absurd, it cannot be supposed that the person speaking intended that his words should be understood in a manner from which an absurdity would follow. Neither is it allowable to presume that he meant to indulge a sportive levity in a serious deed: for what is shameful and unlawful is not to be presumed. We call absurd not only what is physically impossible, but what is morally so,—that is to say, what is so contrary to reason, that it cannot be attributed to a man in his right senses. Those fanatic Jews, who scrupled to defend themselves when the enemy attacked them on the sabbath day, gave an absurd interpretation to the fourth commandment. Why did they not also abstain from dressing, walking, and eating? These also are “works,” 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 penalty of the law which forbids marrying two. This is doubtless a popular tale, invented with a view to ridicule the extreme circumspection of the English, who will not allow the smallest departure from the letter in the application of the law. That wise and free people have too often seen, by the experience of other nations, that the laws are no longer a firm barrier and secure defence, when once the executive power is allowed to interpret them at pleasure. But surely they do not mean that the letter of the law should on any occasion be strained to a sense that is manifestly absurd.

The rule we have just mentioned is absolutely necessary, and ought to be followed, even when the text of the law or 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 province to apply them to particular cases, conformably to the intention of the legislature, or of the contracting powers. Now we are not in any case to presume that it was their intention 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 farther.

The application of the rule is more easy, when the expressions of the law, or of the treaty, are susceptible of two different 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 necessary, in order to avoid falling into an absurdity.

§283.and that which renders the act null and void of effect.It is not to be presumed that sensible persons, in treating together, or transacting any other serious business, meant that the result of their proceedings should prove a mere nullity. The interpretation, therefore, which would render a treaty null and inefficient, cannot be admitted. We may consider this rule as a branch of the preceding; for it is a kind of absurdity to suppose that the very terms of a deed should reduce it to mean nothing. It ought to be interpreted in such a manner, as that it may have its effect, and not prove vain and nugatory: and in this interpretation we proceed according 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 conformable 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 agreeable to the intention of those who framed the deed: the particular circumstances of the case, aided by other rules of interpretation, will serve to point it out. Thucydides relates, that the Athe-nians, after having promised to retire from the 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 reduced it to nothing, or rather to a puerile play. The territories of the Boeotians should evidently have been construed to mean all that was comprised within their former boundaries, without excepting what the enemy had seized during the war.

§284. Obscure expressions interpreted by others more clear in the same author.If he who has expressed himself in an obscure or equivocal manner has spoken elsewhere more clearly on the same subject, he is the best interpreter of his own words. We ought to interpret his obscure or equivocal expressions in such a manner, that they may agree with those clear and unequivocal terms which he has elsewhere 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 thinking, it is presumed that his thoughts have been the same on similar occasions; so that if he has anywhere clearly shewn 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 necessity, 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 mentioning their support: the obscurity or uncertainty which remains 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 auxiliary troops, we are not to presume any such change; and those 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 offensive war.

§285. Interpretation founded on the connection of the discourse.It frequently happens, that, with a view to conciseness, people express imperfectly, and with some degree of obscurity, things which they suppose to be sufficiently elucidated by the preceding matter, or which they intend to explain in the sequel: and moreover, words and expressions have a different force, sometimes even a quite different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is therefore another source of interpretation. We must consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification which it may individually ad-mit of, as that which it ought to have from the context and spirit of the discourse. Such is the maxim of the Roman law, Incivile est, nisi totâ lege perspectâ, unâ aliquâ particulâ ejus propositâ, judicare, vel respondere.

§286. Interpretation drawn from the connection and relation of the things themselves,The very connection and relation of the things in question helps also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner, that all the parts may appear consonant to each other,—that what follows may agree with what preceded,—unless it evidently appear, that, by the subsequent clauses, the parties intended to make some alteration in the preceding ones. For it is to be presumed that the authors of a deed had an uniform and steady train of thinking,—that they did not aim at inconsistencies and contradictions,—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 thousand foot, paid and supported; and in another article, it is said that the ally who is attacked shall be at liberty to demand the promised assistance in cavalry rather than in infantry. 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 appearing to intend any variation in the value or number, they leave the nature of the succours to the choice of the party who may stand in need of them. If therefore the ally who is attacked calls upon the others for cavalry, they will give him, according to the established proportion, an equivalent to ten thousand foot. But if it appears that the intention of the latter article was, that the promised succours should in certain cases be augmented,—if, for instance, it be said, that, in case one of the allies happen to be attacked by an enemy of considerably superior strength, and more powerful in cavalry, the succours shall be furnished in cavalry, and not in infantry,—it appears that, in this case, the promised assistance ought to be ten thousand horse.

As two articles in one and the same treaty may bear relation 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 parties has, in consideration of a certain object, promised to deliver to the other ten thousand sacks of wheat. By a subsequent agreement, it is determined, that, instead of wheat, he shall give him oats. The quantity of oats is not expressed; but it is determined by comparing the second convention with the first. If there be no circumstance to prove that it was the intention of the parties, in the second agreement, 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 appears, from the circumstances and motives of the second convention, that it was their intention to reduce the value of what was due under the former agreement,—in this case, ten thousand sacks of oats are to be substituted in lieu of the ten thousand sacks of wheat.

§287. Interpretation founded on the reason of the deed.The reason of the law, or of the treaty,—that is to say, the motive which led to the making of it, and the object in contemplation at the time,—is the most certain clue to lead us to the discovery of its true meaning; and great attention should be paid to this circumstance, whenever there is question either of explaining an obscure, ambiguous, indeterminate passage in a law or treaty, or of applying it to a particular case. When once we certainly know the reason which alone has determined the will of the person speaking, we ought to interpret and apply his words in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intention, and in opposition to his own views. Pursuant to this rule, a prince, who, on granting his daughter in marriage, has promised to assist his intended 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 and uncertain conjectures, and to suppose reasons and views where there are none certainly known. If the piece in question is in itself obscure,—if, in order to discover its meaning, we have no other resource than the investigation of the author’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 degree 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 absurdity on the face of it. Such a procedure is a violation of that incontestable maxim,—that it is not allowable to interpret what has no need of interpretation (§263). Much less are we allowed,—when the author of a piece has in the piece itself declared his reasons and motives,—to attribute to him some secret reason, which may authorise us in giving an interpretation repugnant to the natural meaning of the expressions. Even though he should have entertained the views which we attribute to him,—yet, if he has concealed them, and announced different ones, it is upon the latter alone that we must build our interpretation, and not upon those which the author has not expressed:—we assume, as true, against him, what he has sufficiently declared (§266).

§288. Where many reasons have concurred to determine the will.We ought to be the more circumspect in this kind of interpretation, as it frequently happens that several motives concur to determine the will of the party who speaks in a law or a promise. Perhaps the combined influence of all those motives was necessary in order to determine his will;—perhaps each one of them, taken individually, would have been sufficient to produce that effect. In the former case, if we are perfectly certain that it was only in consideration of several concurrent reasons and motives that the legislature or the contracting parties consented to the law or the contract, the interpretation and application ought to be made in a manner agreeable to all those concurrent reasons, and none of them must be overlooked. But in the latter case, when it is evident that each of the reasons which have concurred in determining the will, was sufficient to produce that effect, so that the author of the piece in question would, by each of the reasons separately considered, have been induced to form the same determination which he has formed upon all the reasons taken in the aggregate, his words must be so interpreted and applied, as to make them accord with each of those reasons taken individually. Suppose a prince has promised certain advantages to all foreign protestants and artisans who will come and settle in his states: 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 relate only to such foreigners as unite those two characters, of protestants and artisans. But if it is evident that this prince wants to people his country, and that, although he would prefer protestant subjects to others, he has in particular 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 promised advantages.

§289. What constitutes a sufficient reason for an act of the will.To avoid tedious and complex circumlocution, we shall make use of the term, “sufficient reason for an act of the will,” to express whatever has produced that act,—whatever has determined the will on a particular occasion; whether the will has been determined by a single reason, or by many concurrent reasons. That sufficient reason, then, will be sometimes found to consist in a combination of many different reasons, so that, where a single one of those reasons is wanting, the sufficient reason no longer exists: and in those cases where we say that many motives, many reasons, have concurred to determine the will, yet so as that each in particular would have been alone capable of producing the same effect,—there will then be many sufficient reasons for producing one single act of the will. Of this we see daily instances. A prince, for example, declares war for three or four injuries received, each of which would have been sufficient to have produced the declaration of war.

§290. Extensive interpretation founded on the reason of the act.The consideration of the reason of a law or promise not only serves to explain the obscure or ambiguous expressions which occur in the piece, but also to extend or restrict its several provisions independently of the expressions, and in conformity to the intention and views of the legislature or the contracting parties, rather than to their words. For, according to the remark of Cicero, the language, invented to explain the will, ought not to hinder its effect. When the sufficient and only reason of a provision, either in a law or a promise, is perfectly certain, and well understood, we extend that provision to cases to which the same reason is applicable, although they be not comprised within the signification of the terms. This is what is called extensive interpretation. It is commonly said, that we ought to adhere rather to the spirit than to the letter. Thus the Mahomedans justly extend the prohibition of wine, in the Koran, to all intoxicating liquors; that dangerous quality being the only reason that could induce their legislator to prohibit the use of wine. Thus also, if, at the time when there were no other fortifications than walls, it was agreed not to inclose a certain town with walls, it would not be allowable to fortify it with fossés and ramparts, 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 recommended (§287), and even still greater, since the question relates to an application in no wise authorised by the terms of the deed. We ought to be thoroughly convinced that we know the true and only reason of the law or the promise, and that the author has taken it in the same latitude which must be given to it in order to make it reach the case to which we mean to extend the law or promise in question. As to the rest, I do not here forget what I have said above (§268), that the true sense of a promise is not only that which the person promising had in his mind, but also that which has been sufficiently declared,—that which both the contracting parties must reasonably have understood. In like manner, the true reason of a promise is that which the contract, the nature of the things in question, and other circumstances, sufficiently indicate: it would be useless and ridiculous to allege any by-views which the person might have secretly entertained in his own mind.

§291. Frauds tending to elude laws or promises.The rule just laid down serves also to defeat the pretexts and pitiful evasions of those who endeavour to elude laws or treaties. 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 Rhodians. The latter having sent collectors to levy the tribute, the queen of Egypt amused them for some time at her court, using in the mean while every possible exertion to join Pharos to the main land by means of moles: after which she laughed at the Rhodians, and sent them a message intimating that it was very unreasonable in them to pretend to levy on the main land a tribute which they had no title to demand except from the islands. There existed a law which forbade the Corinthians to give vessels to the Athenians:—they sold them a number at five drachmae each. 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 who is guilty of it.

§292. Restrictive interpretation.Restrictive interpretation, which is the reverse of extensive interpretation, is founded on the same principle. As we extend a clause to those cases, which, though not comprised within the meaning of the terms, are nevertheless comprised in the intention of that clause, and included in the reasons that produced it,—in like manner, we restrict a law or a promise, contrary to the literal signification of the terms,—our judgment being directed by the reason of that law or that promise: that is to say, if a case occurs, to which the well-known reason of a law or promise is utterly inapplicable, that case ought to be excepted, although, if we were barely to consider the meaning of the terms, it should seem to fall within the purview of the law or promise. It is impossible to think of every thing, to foresee every thing, and to express every thing; it is sufficient to enounce certain things in such a manner as to make known our thoughts concerning things of which we do not speak: and, as Seneca the rhetorician says, there are exceptions so clear, that it is unnecessary to express them. The law condemns to suffer death whoever strikes his father: shall we punish him who has shaken and struck his father, to recover him from a lethargic stupor? shall we punish a young child, or a man in a delirium, who has lifted his hand against the author of his life? In the former case the reason of the law does not hold good; and to the two latter it is inapplicable. We are bound to restore what is intrusted to us: shall I restore what a robber has intrusted to me, at the time when the true proprietor makes himself known to me, and demands his property? A man has left his sword with me: shall I restore it to him, when, in a transport of fury, he demands it for the purpose of killing an innocent person?

§293. Its use, in order to avoid falling into absurdities, or into what is unlawful;We have recourse to restrictive interpretation, in order to avoid falling into absurdities (see §282). A man bequeaths his house to one, and to another his garden, the only entrance into which is through the house. It would be absurd to suppose that he had bequeathed to the latter a garden into which he could not enter: we must therefore restrict the pure and simple donation of the house, and understand that it was given only upon condition of allowing a passage to the gar-den. The same mode of interpretation is to be adopted whenever a case occurs, in which the law or the treaty, if interpreted 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 assistance has been promised to an ally in all his wars, no assistance ought to be given him when he undertakes one that is manifestly unjust.

§294.or what is too severe and burthensome.When a case arises in which it would be too severe and too prejudicial to any one to interpret a law or a promise according to the rigour of the terms, a restrictive interpretation is then also used, and we except the case in question, agreeably to the intention of the legislature, or of him who made the promise: for the legislature intends only what is just and equitable; and, in contracts, no one can enter into such engagements in favour of another, as shall essentially supersede the duty he owes to himself. It is then presumed with reason, that neither the legislature nor the contracting parties have intended to extend their regulations to cases of this nature, and that they themselves, if personally present, would except them. A prince is no longer obliged to send succours to his allies, when he himself is attacked, and has need of all his forces for his own defence. He may also, without the slightest imputation of perfidy, abandon an alliance, when, through the ill success of the war, he sees his state threatened with impending ruin if he does not immediately treat with the enemy. Thus, towards the end of the last century, Victor Amadeus, duke of Savoy, found himself under the necessity of separating from his allies, and of receiving law from France, to avoid losing his states. The king his son would have had good reasons to justify a separate peace in the year 1745: but upheld by his courage, and animated by just views of his true interest, he embraced the generous resolution to struggle against an extremity which might have dispensed with his persisting in his engagements.

§295. How it ought to restrict the signification agreeably to the subject.We have said above (§280), that we should take the expressions in the sense that agrees with the subject or the matter. Restrictive interpretation is also directed by this rule. If the subject or the matter treated of will not allow that the terms of a clause should be taken in their full extent, we should limit the sense according as the subject requires. Let us suppose that the custom of a particular country confines the entail of fiefs to the male line properly so called: if an act of enfeoffment in that country declares that the fief is given to a person for himself and his male descendents, the sense of these last words must be restricted to the males descending from males; for the subject will not admit of our understanding them also of males who are the issue of females, though they are reckoned among the male descendents of the first possessor.

§296. How a change happening in the state of things may form an exception.The following question has been proposed and debated,—“Whether promises include a tacit condition of the state of af-fairs continuing the same,—or whether a change happening in the state of affairs can create an exception to the promise, and even render it void.” The principle derived from the reason of the promise, must solve the question. If it be certain and manifest, that the consideration of the present state of things was one of the reasons which occasioned the promise,—that the promise was made in consideration or in consequence of that state of things,—it depends on the preservation of things in the same state. This is evident, since the promise was made only upon that supposition. When therefore that state of things, which was essential to the promise, and without which it certainly would not have been made, happens to be changed, the promise falls to the ground, when its foundation fails. And in particular cases where things cease for a time to be in the state that has produced or concurred to produce the promise, an exception is to be made to it. An elective prince being without issue, has promised to an ally that he will procure his appointment to the succession. He has a son born: who can doubt that the promise 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 defence 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 aggrandisement,—in order to enable him to obtain a neighbouring state by election or by marriage: yet those allies will have just grounds for refusing him the smallest aid or support, and even forming an alliance against him, when they see him elevated to such a height of power, as to threaten the liberties of all Europe. If the great Gustavus had not been killed at Lutzen, cardinal de Richelieu, who had concluded an alliance for his master with that prince, and who had invited him into Germany, and assisted him with money, would perhaps have found himself obliged to traverse the designs of that conqueror, when become formidable,—to set bounds to his astonishing progress, and to support his humbled enemies. The states-general of the United Provinces conducted themselves on these principles in 1668. In favour of Spain, which before had been their mortal enemy, they formed the triple alliance against Louis XIV. their former ally. It was necessary to raise a barrier to check the progress of a power which threatened to inundate and overwhelm all before it.

But we ought to be very cautious and moderate in the application of the present rule: it would be a shameful perversion of it, to take advantage of every change that happens in the state of affairs, in order to disengage ourselves from our promises: were such conduct adopted, there could be no dependence placed on any promise whatever. That state of things alone, in consideration of which the promise was made, is essential to the promise: and it is only by a change in that state, that the effect of the promise can be lawfully prevented or suspended.—Such is the sense in which we are to understand that maxim of the civilians, conventio omnis intelligitur rebus sic stantibus.

What we say of promises, must also be understood as extending to laws. A law which relates to a certain situation of affairs can only take place in that situation. We ought to 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. Interpretation of a deed in unforeseen cases.In unforeseen cases, that is to say, when the state of things happens to be such as the author of a deed has not foreseen, and could not have thought of, we should rather be guided by his intention than by his words, and interpret the instrument as he himself would interpret it if he were on the spot, or conformably to what he would have done if he had foreseen the circumstances which are at present known. This rule is of great use to judges, and to all those in society who are appointed to carry into effect the testamentary regulations of the citizens. A father appoints by will a guardian for his children, who are under age. After his death the magistrate finds that the guardian he has nominated is an extravagant profligate, without property or conduct: he therefore dismisses 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. Reasons arising from the possibility and not the existence of a thing.When the things which constitute the reason of a law or convention, are considered, not as actually existing, but simply as possible,—or, in other words, when the fear of an event is the reason of a law or a promise, no other cases can be excepted from it, than those in which it can be proved to demonstration that the event is really impossible. The bare possibility 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 intended by such a step: for the object of a clause of this nature is not only to prevent a real evil, but also to keep all danger at a distance, and to avoid even the slightest subject of uneasiness. 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 transgressor 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 conflagration was sufficient to have rendered it his duty to obey the law; and he has transgressed it by ex-citing fears which it was the intention of the legislature to prevent.

§299. Expressions capable of an extensive and a limited sense.At the beginning of this chapter, we observed that men’s ideas and language are not always perfectly determinate. There is, doubtless, no language in which there do not occur expressions, words, or entire phrases, susceptible of a more or less extensive signification. Many a word is equally applicable 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, sparrow, &c.—when we speak of horses merely with a view to the services they render to mankind, mares also are comprehended under that name. In technical language a word has sometimes a more and sometimes a less extensive sense, than in vulgar use: the word death, among civilians, signifies not only natural death, but also civil death: verbum, in the Latin grammar, signifies only that part of speech called the verb; but, in common use, it signifies any word in general. Frequently also the same phrase implies more things on one occasion, and fewer on another, according to the nature of the subject or matter: thus, when we talk of sending succours, sometimes we understand a body of auxiliary troops maintained and paid by the party who sends them, at other times a body whose expenses are to be entirely defrayed by the party who receives them. It is therefore necessary to establish rules for the interpretation of those indeterminate expressions, in order to ascertain the cases in which they are to be understood in the more extensive sense, and those in which they are to be restricted to their more limited meaning. Many of the rules we have already given may serve for this purpose.

§300. Of things favourable, and things odious.But it is to this head that the famous distinction, between things of a favourable and those of an odious nature, particularly belongs. Some writers have rejected the distinction, —doubtless, for want of properly understanding it. In fact, 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, determinate, and attended with no doubt or difficulty in the application, there is no room for any interpretation or comment (§263). The precise point of the will of the legislature or the contracting parties, is what we must adhere to. But if their expressions are indeterminate, vague, or susceptible of a more or less extensive sense,—if that precise point of their intention cannot, in the particular case in question, be discovered and fixed by the other rules of interpretation,—we must presume it according to the laws of reason and equity: and, for 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 expressions of the law or the contract, it is safer and more consistent with equity, to suppose and fix that point in the more extensive than in the more limited sense of the terms,—to give a latitude to the meaning of the expressions, than to restrict it. These are the things called favourable. Odious things, on the other hand, are those, of which the restriction tends more certainly to equity, than the extension. Let us figure to ourselves the intention or the will of the legislature or the contracting parties, as a fixed point. At that point precisely should we stop, if it be clearly known;—if uncertain, we should at least endeavour to approach it. In things favourable, it is better to pass beyond that point, than not to reach it; in things odious, it is better not to reach it, than to pass beyond it.

§301. What tends to the common advantage, and to equality, is favourable; the contrary is odious.It will not now be difficult to shew, in general, what things are favourable, and what are odious. In the first place, every thing that tends to the common advantage in conventions, or that has a tendency to place the contracting parties on a footing 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 intended to favour the other to his own prejudice; but there is no danger in extending what is for the common advantage. If, therefore, it happens that the contracting parties have not made known their will with sufficient clearness, and with all the necessary precision, it is certainly more conformable to equity to seek for that will in the sense most favourable to equality and the common advantage, than to suppose it in the contrary sense. For the same reason, every thing that is not for the common advantage, every thing that tends to destroy the equality of a contract, every thing that onerates only one of the parties, or that onerates the one more than the other, is odious. In a treaty of strict friendship, union, and alliance, every thing which, without being burthensome to any of the parties, tends to the common advantage of the confederacy, and to draw the bonds of union closer, is favourable. In unequal treaties, and especially in unequal alliances, all the clauses of inequality, and principally those that onerate the inferior ally, are odious. Upon this principle, that we ought, in case of doubt, to extend what leads to equality, and restrict what destroys it, is founded that well-known rule—Incommoda vitantis melior quam commoda petentis est causa,—the party who endeavours to avoid a loss, has a better cause to support than he who aims at obtaining an advantage.

§302. What is useful to human society, is favourable; the contrary is odious.All those things which, without proving too burthensome to any one in particular, are useful and salutary to human society, are to be ranked in the class of favourable things: for a nation is already under a natural obligation with respect to things of this nature; so that if she has entered into any particular engagements of this kind, we run no risk in giving those engagements the most extensive meaning of which they are susceptible. Can we be afraid of violating the rules of equity by following the law of nature, and giving the utmost extent to obligations that tend to the common advantage of mankind? Besides, things which are useful to human society, are, from that very circumstance, conducive to the common advantage of the contracting parties, and are consequently favourable (see the preceding section). On the other hand, let us consider as odious, every thing that is, in its own nature, rather injurious than useful to mankind. Those things which have a tendency to promote peace are favourable; those that lead to war are odious.

§303. Whatever contains a penalty, is odious.Every thing that contains a penalty, is odious. With respect to the laws, it is universally agreed, that, in case of doubt, the judge ought to incline to the merciful side, and that it is indisputably better to suffer a guilty person to escape, than to punish one who is innocent. Penal clauses in treaties lay a burthen upon one of the parties; they are therefore odious (§301).

§304. Whatever renders a deed void, is odious.Whatever tends to render a deed void and ineffectual, either in the whole or in part, and consequently, whatever introduces any change in things already agreed upon, is odious: for men treat together with a view to their common benefit; and if I enjoy any particular advantage acquired by a lawful contract, I must not be deprived of it except by my own renunciation. When therefore I consent to new clauses that seem to derogate from it, I can lose my right only so far as I have clearly given it up; and consequently these new clauses are to be understood in the most limited sense they will admit of; as is the case in things of an odious nature (§300). If that which tends to render a deed void and ineffectual, is contained in the deed itself, it is evident that such passages ought to be construed in the most limited sense, in the sense best calculated to preserve the deed in force. We have already seen, that we should reject every interpretation which tends to render a deed void and ineffectual (§283).

§305. Whatever tends to change the present state of things, is odious; the contrary is favourable.Whatever tends to change the present state of things, is also to be ranked in the class of odious things: for the proprietor cannot be deprived of his right except so far, precisely, as he relinquishes it on his part; and in case of doubt, the presumption is in favour of the possessor. It is less repugnant to equity to with-hold from the owner a possession which he has lost through his own neglect, than to strip the just possessor of what lawfully belongs to him. In the interpretation, therefore, we ought rather to hazard the former inconvenience 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. Things of a mixed nature.Finally, there are things which are at once of a favourable or an odious nature, according to the point of view in which they are considered. Whatever derogates from treaties, or changes the state of things, is odious; but if it is conducive 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 conventions is reckoned as nothing, when it procures the inestimable blessings of peace. In the same manner, penal laws may be interpreted in their most extensive meaning, on critical occasions when such an instance of severity becomes necessary to the safety of the state. Cicero caused the accomplices of Catiline to be executed by virtue of a decree of the senate,—the safety of the republic rendering it improper to wait till they should be condemned by the people. But where there is not so great a disproportion in the case, and where things are in other respects equal, favour inclines to that side of the question which presents nothing odious;—that is to say, we ought to abstain from things of an odious nature, unless the attendant advantage so far exceed the odious 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 question of giving them against an ally,—which would be odious.

§307. Interpretation of favourable things.The following are the rules of interpretation, which flow from the principles we have just laid down.

1. When the question relates to things favourable, we ought to give the terms the utmost latitude of which they are susceptible according to the common usage of the language; and if a term has more than one signification, the most extensive meaning is to be preferred: for equity ought to be the rule of conduct with all mankind wherever a perfect right is not exactly determined and known in its precise extent. When the legislature or the contracting parties have not expressed their will in terms that are precise and perfectly determinate, it is to be presumed that they intended what is most equitable. Now, when there is question of favourable things, the more extensive signification of the terms accords better with equity than their more confined signification. Thus Cicero, in pleading the cause of Caecina, justly maintains that the interlocutory decree, ordaining, “that the person expelled from his inheritance 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. 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 inheritance, or forcibly to prevent him from entering upon it; and, in both cases, the same reason exists for putting him in possession.

2. In questions relating to favourable things, all terms of art are to be interpreted in the fullest latitude of which they are susceptible, not only in common usage, but also as technical terms, if the person speaking understands the art to which those terms belong, or conducts himself by the advice of men who understand that art.

3. But we ought not, from the single reason that a thing is favourable, to take the terms in an improper signification: this is not allowable, except when necessary in order to avoid absurdity, injustice, or the nullity of the instrument, as is practised on every subject (§§282, 283): for we ought to take the terms of a deed in their proper sense, conformably to custom, unless we have very strong reasons for deviating from it (§271).

4. Though a thing appears favourable when viewed in one particular light,—yet, where the proper meaning of the terms would, if taken in its utmost latitude, lead to absurdity or injustice, their signification must be restricted according to the rules given above (§§293, 294). For here, in this particular 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, nevertheless, manifest equity or a great common advantage requires their restriction, we ought to adhere to the most limited sense which the proper signification will admit, even in an affair that appears favourable in its own nature,—because here also the thing is of a mixed kind, and ought, in this particular case, to be esteemed odious. As to the rest, it is to be carefully remembered that all these rules relate only to doubtful cases; since we are not allowed to go in quest of interpretations for what is already clear and determinate (§263). If any one has clearly and formally bound himself to burthensome conditions, he has knowingly and willingly done it, and cannot afterwards be admitted to appeal to equity.

§308. Interpretation of odious things.Since odious things are those whose restriction tends more certainly to equity than their extension,—and since we ought to pursue that line which is most conformable to equity, when the will of the legislature or of the contracting parties is not exactly determined and precisely known,—we should, when there is question of odious things, interpret the terms in the most limited sense: we may even, to a certain degree, adopt a figurative meaning, in order to avert the oppressive consequences of the proper and literal sense, or any thing of an odious nature, which it would involve: for we are to favour equity, and to do away every thing odious, as far as that can be accomplished without going in direct opposition to the tenor of the instrument, or visibly wresting the text. Now neither the limited nor even the figurative sense offers any violence to the text. If it is said in a treaty, that one of the allies shall assist the other with a certain number of troops at his own expense, and that the latter shall furnish the same number of auxiliary troops at the expense of the party to whom they are sent, there is something odious in the engagement of the former ally, since he is subject to a greater burthen 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 furnish a body of ten thousand men, and the other only of five thousand, without mentioning the expense, it ought to be understood 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 conqueror 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 maintaining that their cession of Acadia to the English by the treaty of Utrecht did not extend beyond the narrowest limits of that province.

In point of penalties, in particular when they are really odious, we ought not only to restrict the terms of the law, or of the contract, to their most limited signification, and even adopt a figurative meaning, according as the case may require or authorise it,—but also to admit of reasonable excuses; which is a kind of restrictive interpretation, tending to exempt the party from the penalty.

The same conduct must be observed with respect to what may render an act void and without effect. Thus, when it is agreed that the treaty shall be dissolved whenever one of the contracting parties fails in the observance of any article of it, it would be at once both unreasonable and contrary to the end proposed in making treaties, to extend that clause to the slightest faults, and to cases in which the defaulter can allege well-grounded excuses.

§309. Examples.Grotius proposes the following question—“Whether, in a treaty which makes mention of allies, we are to understand those only who were in alliance at the time when the treaty was made, or all the allies present and future?” And he gives, as an instance, that article of the treaty concluded between 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 authorised 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 favourable, 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 dissolve an alliance: for, by engaging not to injure the allies of another power, we do not deprive ourselves of the liberty to make war on them if they give us just cause for hostilities; and when a clause is just and reasonable, it does not become odious from the single circumstance that it may perhaps eventually occasion a rupture of the alliance. Were that to be the case, there could be no clause whatever, that might not be deemed odious. This reason, which we have touched upon in the preceding section and in §304, holds good only in doubtful cases: in the case before us, for instance, it ought to have prevented a too hasty decision that the Carthaginians had causelessly attacked an ally of the Romans. The Carthaginians, therefore, might, without any violation of the treaty, attack Saguntum, if they had lawful grounds for such an attack, or (in virtue of the voluntary law of nations) even apparent or specious grounds (Prelim. §21). But they might have attacked in the same manner the most ancient ally of the Romans; and the Romans might also, without breaking the treaty of peace, have confined themselves to the succouring of Saguntum. At present, treaties include the allies on both sides: but this does not imply that one of the contracting powers may not make war on the allies of the other if they give him cause for it,—but simply, that, in case of any quarrel arising between them, each of the contracting parties reserves 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 Aemilianus, and obliged to capitulate, the Romans promised “that Carthage should remain free, or in possession of the privilege of governing herself by her own laws.” In the sequel, however, those merciless conquerors pretended that the promised liberty regarded the inhabitants, and not the city: they insisted that Carthage should be demolished, and that the wretched inhabitants should settle in a place at a greater distance from the sea. One cannot read the account of this perfidious and cruel treatment, without being concerned that the great, the amiable Scipio was obliged to be the instrument of it. To say nothing of the chicanery of the Romans respecting the meaning to be annexed to the word “Carthage,”—certainly, the “liberty” promised to the Carthaginians, though narrowly circumscribed by the existing state of affairs, should at least have extended to the privilege of remaining in their city. To find themselves obliged to abandon it and settle elsewhere,—to lose their houses, their port, and the advantages 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.

§310. How we ought to interpret deeds of pure liberality.Liberal promises, benefactions, and rewards, naturally come under the class of favourable things, and receive an extensive interpretation, unless they prove onerous or unreasonably chargeable to the benefactor, or that other circumstances evidently shew 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 of the odious; and, in case of doubt, equity will not admit 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 which the words are capable of receiving, and thus reduce the benefaction within the bounds of reason. The same mode should be adopted when other circumstances evidently point out 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-burthened by them: it is a respect due to majesty, to suppose that he had good reasons to induce him to confer them. They are therefore, in their own nature, altogether favourable; and, in order to restrict them, it must be proved that they are burthensome 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 precise and very determinate, they should be interpreted as meaning what the author probably had in his mind.

§311. Collision of laws or treaties.Let us conclude this subject of interpretation with what relates to the collision or opposition of laws or treaties. We do not here speak of the collision of a treaty with the law of nature: the latter is unquestionably paramount, as we have proved elsewhere (§§160, 161, 170, and 293). There is a collision or opposition between two laws, two promises, or two treaties, when a case occurs in which it is impossible to fulfil both at the same time, though otherwise the laws or treaties in question are not contradictory, and may be both fulfilled under different circumstances. They are considered as contrary in this particular case; and it is required to shew which deserves the preference, or to which an exception ought to be made on the occasion. In order to guard against all mistake in the business, and to make the exception conformably to reason and justice, we should observe the following rules.

§312. First rule in cases of collision.1. In all cases where what is barely permitted is found incompatible with what is positively prescribed, the latter claims 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 forbear to do it. But we have not the same liberty with respect to what is prescribed: we are obliged to do that: nor can the bare permission 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 particular instance, where we cannot take advantage of the permission without violating a positive duty.

§313.2d Rule.2. In the same manner, the law or treaty which permits, ought to give way to the law or treaty which forbids: for the prohibition must be obeyed; and what was, in its own nature, or in general, permitted, must not be attempted when it cannot be done without contravening a prohibition: the permission, in that case, ceases to be available.

§314.3d Rule.3. All circumstances being otherwise equal, the law or the treaty which ordains, gives way to the law or the treaty which forbids. I say, “all circumstances being otherwise equal”; for many other reasons may occur, which will authorise the exception being made to the prohibitory law or treaty. The rules are general; each relates to an abstract idea, and shews what follows from that idea, without derogation to the other rules. Upon this footing, it is evident, that, in general, if we cannot obey an injunctive law without violating a prohibitory one, we should abstain from fulfilling the former: for the prohibition 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 prescribed. 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 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 equivalent to an absolute one: there are, however, many prohibitions to which circumstances form an exception. Our meaning will be better explained by an example. It is expressly forbidden, for reasons to me unknown, to pass through a certain place under any pretence whatsoever. I am ordered to carry a message; I find every other avenue shut; I therefore turn back rather than take my passage over that ground which is so strictly forbidden. But if the prohibition to pass be only a general one with a view to prevent any injury being done to the productions of the soil, it is easy for me to judge that the orders with which I am charged ought to form an exception.

As to what relates to treaties, we are not obliged to accomplish what a treaty prescribes, any farther than we have the power. Now we have not a power to do what another 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 cannot derogate from a prior one concluded with another state, nor hinder its effect directly or indirectly.

§315.4th Rule.4. The dates of laws or treaties furnish new reasons for establishing the exception in cases of collision. If the collision happen between two affirmative laws, or two affirmative treaties concluded between the same persons or the same states, that which is of more recent date claims a preference over the older one: for it is evident, that, since both laws or both treaties have emanated from the same power, the subsequent act was capable of derogating from the former. But still this is on the supposition of circumstances being in other respects equal.—If there be a collision between two treaties made with two different powers, the more ancient claims the preference: for, no engagement of a contrary tenor could be contracted in the subsequent treaty; and if this latter be found, in any case, incompatible with that of more ancient date, its execution is considered as impossible, because the person promising had not the power of acting contrary to his antecedent engagements.

§316.5th Rule.5. Of two laws or two conventions, we ought (all other circumstances being equal) to prefer the one which is less general, and which approaches nearer to the point in question: because special matter admits of fewer exceptions than that which is general; it is enjoined with greater precision, and appears to have been more pointedly intended. Let us make use of the following example from Puffendorf: —One law forbids us to appear in public with arms on holidays: another law commands us to turn out under arms, and repair to our posts, as soon as we hear the sound of the alarm-bell. The alarm is rung on a holiday. In such case we must obey the latter of the two laws, which creates an exception to the former.

§317.6th Rule.6. What will not admit of delay, is to be preferred to what may be done at another time. For this is the mode to reconcile every thing, and fulfil both obligations; whereas if we gave the preference to the one which might be fulfilled at another time, we would unnecessarily reduce ourselves to the alternative of failing in our observance of the other.

§318.7th Rule.7. When two duties stand in competition, that one which is the more considerable, the more praiseworthy, and productive of the greater utility, is entitled to the preference. This rule has no need of proof. But as it relates to duties that are equally in our power, and, as it were, at our option, we should 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 assistance and give it to the former; for we stand pre-engaged. There is not, strictly speaking, any competition between these two duties: they do not lie at our option: the prior engagement renders the second duty, for the present, impracticable. However, if there were question of preserving a new ally from certain ruin, and that the more ancient ally were not reduced to the same extremity, this would be the case to which the foregoing rule should be applied.

As to what relates to laws in particular, the preference is undoubtedly to be given to the more important and necessary ones. This is the grand rule to be observed whenever they are found to clash with each other; it is the rule which claims the greatest attention, and is therefore placed by Cicero at the head of all the rules he lays down on the subject. It is counteracting the general aim of the legislature, and the great end of the laws, to neglect one of great importance, under 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 Rule.8. If we cannot acquit ourselves at the same time of two things promised to the same person, it rests with him to choose which of the two we are to perform; for he may dispense with the other on this particular occasion; in which case there will no longer be any collision of duties. But if we cannot obtain a knowledge of his will, we are to presume that the more important one is his choice; and we should of course give that the preference. And, in case of doubt, we should perform the one to which we are the more strongly bound;—it being presumable that he chose to bind us more strongly to that in which he is more deeply interested.

§320.9th Rule.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 preference is to be given to the former; because the oath adds a new force to the obligation. But as it makes no change in the nature of treaties (§§225, &c.), it cannot, for instance, entitle a new ally to a preference over a more ancient ally whose treaty has not been confirmed by an oath.

§321.10th Rule.10. For the same reason, and, all circumstances being in other respects equal, what is enjoined under a penalty claims a preference over that which is not enforced by one,—and what is enjoined under a greater penalty, over that which is enforced by a lesser; for the penal sanction and convention give additional force to the obligation: they prove that the object in question was more earnestly desired, and the more so in proportion as the penalty is more or less severe.

§322. General remark on the manner of observing all the preceding rules.All the rules contained in this chapter ought to be combined together, and the interpretation be made in such manner as to accord with them all, so far as they are applicable to the case. When these rules appear to clash, they reciprocally counterbalance and limit each other, according to their strength and importance, and according as they more particularly belong to the case in question.

CHAPTER XVIII

Of the Mode of terminating Disputes between Nations.

§323. General direction on this subject.The disputes that arise between nations or their rulers, originate either from contested rights or from injuries received. A nation ought to preserve the rights which belong to her; and the care of her own safety and glory forbids her to submit to injuries. But in fulfilling the duty which she owes to her-self, she must not forget her duties to others. These two views, combined together, will furnish the maxims of the law of nations respecting the mode of terminating disputes between different states.

§324. Every nation is bound to give satisfaction respecting the just complaints of another.What we have said in Chap. I. IV. and V. of this book, dispenses with our proving here, that a nation ought to do justice to all others with respect to their pretensions, and to remove all their just subjects of complaint. She is therefore bound to render to each nation what is her due,—to leave her in the peaceable enjoyment of her rights,—to repair any damage that she herself may have caused, or any injury she may have done,—to give adequate satisfaction for such injuries as cannot be repaired, and reasonable security against any injury which she has given cause to apprehend. These are so many maxims evidently dictated by that justice which nations as well as individuals are, by the law of nature, bound to observe.

§325. How nations may abandon their rights and just complaints.Every one is at liberty to recede from his right, to relinquish a just subject of complaint, and to forget an injury. But the ruler of a nation is not, in this respect, so free as a private individual. The latter may attend solely to the voice of generosity; and, in an affair which concerns none but himself 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 consult 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 general interests of mankind, from which it is inseparable. It behoves the prince, on every occasion, wisely to consider, and firmly to execute, whatever is most salutary to the state, most conformable to the duties of the nation towards other states,—and, at the same time, to consult justice, equity, humanity, sound policy, and prudence. The rights of the nation are a property of which the sovereign is only the trustee; and he ought not to dispose of them in any other manner than he has reason to presume the nation herself would dispose of them. And as to injuries, it is often laudable in a citizen generously to pardon them: he lives under the protection of the laws; the magistrates are capable of defending or avenging him against those ungrateful or unprincipled wretches whom his indulgence might encourage to a repetition of the offence. A nation has not the same security: it is seldom safe for her to overlook or forgive an injury, unless she evidently possess sufficient power to crush the rash aggressor who has dared to offend her. In such a case, indeed, it will reflect glory on her, to pardon those who acknowledge their faults,—

Parcere subjectis, et debellare superbos;

and she may do it with safety. But between powers that are nearly equal, the endurance of an injury without insisting on complete satisfaction for it, is almost always imputed to weakness or cowardice, and seldom fails long to subject the injured party to further wrongs of a more atrocious nature. Why do we often see the very reverse of this conduct pursued by those who fancy themselves possessed of souls so highly 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 behave with greater moderation.

§326. Means suggested by the law of nature, for terminating their disputes.If neither of the nations who are engaged in a dispute thinks proper to abandon her right or her pretensions, the contending parties are, by the law of nature, which recommends peace, concord, and charity, bound to try the gentlest methods of terminating their differences. These are,1. Amicable accommodation.—first, an amicable accommodation.—Let each party coolly and candidly examine the subject of the dispute, and do justice to the other; or let him whose right is too uncertain, voluntarily renounce it. There are even occasions when it may be proper for him who has the clearer right, to renounce it, for the sake of preserving peace,—occasions, which 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 you for what you abandon: but you gain a friend in the party to whom you amicably yield up what was the subject of a dispute.

§327.2. Compromise.Compromise is a second method of bringing disputes to a peaceable termination. It is an agreement, by which, without precisely deciding on the justice of the jarring pretensions, 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 indemnifications granted to the other.

§328.3. Mediation.Mediation, in which a common friend interposes his good offices, frequently proves efficacious in engaging the contending parties to meet each other half-way,—to come to a good understanding,—to enter into an agreement or compromise respecting their rights,—and, if the question relates to an injury, to offer and accept a reasonable satisfaction. The office of mediator requires as great a degree of integrity, as of prudence and address. He ought to observe a strict impartiality; he should soften the reproaches of the disputants, calm their resentments, and dispose their minds to a reconciliation. 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 imposed on any one, without his own consent clearly manifested. At present, when the affairs of the sovereigns of Europe are so connected, that each has an eye on what passes between those who are the most distant, mediation is a mode of conciliation much used. Does any dispute arise? The friendly powers, those who are afraid of seeing the flames of war kindled, offer their mediation, and make overtures of peace and accommodation.

§329.4. Arbitration.When sovereigns cannot agree about their pretensions, and are nevertheless desirous of preserving or restoring peace, they sometimes submit the decision of their disputes to arbitrators chosen by common agreement. When once the contending 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 character 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 justice of a sentence before we would submit to it, it would be of very little use to appoint arbitrators.

There is no reason to apprehend, that, by allowing the parties a liberty of refusing to submit to a manifestly unjust and unreasonable sentence, we should render arbitration useless: our decision is by no means repugnant to the nature of recognisances or arbitration articles. There can be no difficulty in the affair, except in case of the parties having signed vague and unlimited articles, in which they have not precisely specified the subject of the dispute, or marked the bounds of their opposite pretensions. It may then happen, as in the example just alleged, that the arbitrators will exceed their power, and pronounce on what has not been really submitted to their decision. Being called in to determine what satisfaction a state ought to make for an offence, they may condemn her to become subject to the state she has offended. But she certainly never gave them so extensive a power; and their absurd sentence is not binding. In order to obviate all difficulty, and cut off every pretext of which fraud might make a handle, it is necessary that the arbitration articles should precisely specify the subject in dispute, the respective 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 parties promise to abide by their judgment. If then their sentence be confined within these precise bounds, the disputants must acquiesce in it. They cannot say that it is manifestly unjust, since it is pronounced on a question which they have themselves rendered doubtful by the discordance of their claims, and which has been referred, as such, to the decision of the arbitrators. Before they can pretend to evade such a sentence, they should prove, by incontestable facts, that it was the offspring of corruption or flagrant partiality.

Arbitration is a very reasonable mode, and one that is perfectly conformable to the law of nature, for the decision of every dispute which does not directly interest the safety of the nation. Though the claim of justice may be mistaken by the arbitrators, it is still more to be feared that it will be overpowered in an appeal to the sword. The Swiss have had the precaution, in all their alliances among themselves, and even in those they have contracted with the neighbouring powers, to agree before-hand on the manner in which their disputes were to be submitted to arbitrators, in case they could not adjust them in an amicable manner. 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.

§330. Conferences and congresses.In order to put in practice any of these methods, it is necessary to speak with each other, and to confer together. Conferences and congresses are therefore a mode of conciliation, which the law of nature recommends to nations, as well calculated to bring their differences to an amicable termination. Congresses are assemblies of plenipotentiaries appointed to find out means of conciliation, and to discuss and adjust the reciprocal pretensions of the contending parties. To afford the prospect of a happy issue of their deliberations, such meetings should be formed and directed by a sincere desire of peace and concord. In the present century, Europe has witnessed two general congresses,—that of Cambray, and that of Soissons, —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.

§331. Distinction to be made between evident and doubtful cases.In order at present to ascertain in what manner and how far a nation is bound to resort or accede to these various modes of accommodation, and which of them she ought to prefer, it becomes necessary, in the first place, to distinguish between cases that are evident, and those that are doubtful. Does the question relate to a right that is clear, certain, and incontestable? A sovereign, if he possesses sufficient strength, may peremptorily prosecute and defend that right, without exposing 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 with-out the least shadow of justice? Much less will he subject it to arbitration. But he ought not to neglect those methods of conciliation, which, without endangering his own right, may induce his opponent to listen to reason,—such as mediation and conferences. Nature gives us no right to have recourse to forcible means, except where gentle and pacific methods prove ineffectual. It is not permitted to be so inflexible in uncertain and doubtful questions. Who will dare to insist that another shall immediately, and without examination, relinquish to him a disputable 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, propose a conference or an arbitration, or offer to settle the point by articles of agreement.

§332. Of essential rights, and those of less importance.In the disputes that arise between sovereigns, it is moreover necessary to make a proper distinction between essential rights and rights of inferior importance: for, according to the difference in the two cases, a different line of conduct is to be pursued. A nation is under many obligations of duty towards herself, towards other nations, and towards the great society of mankind. We know that the duties we owe to ourselves are, generally speaking, paramount to those we owe to others: but this is to be understood only of such duties as bear some proportion to each other. We cannot refuse, in some degree, to forget ourselves with respect to interests that are not essential, and to make some sacrifices, in order to assist other persons, and especially for the greater benefit of human society: and let us even remark, that we are invited by our own advantage, by our own safety, to make these generous sacrifices; for the private good of each is intimately connected with the general happiness. What idea should we entertain of a prince or a nation who would refuse to give up the smallest advantage for the sake of procuring to the world the inestimable blessings of peace? Every power therefore owes this respect to the happiness of human society, to shew himself open to every mode of conciliation, in questions relating to interests which are neither essential nor of great importance. If he exposes himself to the loss of something by an accommodation, by a compromise, or by an arbitration, he ought to be sensible what are the dangers, the evils, the calamities of war, and to consider that peace is well worth a small sacrifice.

But if any one would rob a nation of one of her essential rights, or a right without which she could not hope to support her national existence,—if an ambitious neighbour threatens the liberty of a republic,—if he attempts to subjugate and enslave her,—she will take counsel only from her own courage. She will not even attempt the mode of conferences on so odious a pretension: she will, in such a quarrel, exert her utmost efforts, exhaust every resource, and gloriously lavish her blood to the last drop if necessary. To listen to the smallest proposition, is putting every thing to the risk. On such an occasion she may truly say—

Una salus——nullam sperare salutem:

and if fortune prove unfavourable, a free people will prefer death to servitude. What would have become of Rome, had she listened to timid counsels, when Hannibal was encamped before her walls? The Swiss, ever so ready to embrace pacific measures or submit to legal decisions in disputes respecting less essential points, have uniformly spurned at all idea of compromise with those who harboured designs against their liberty. They even refused on such occasions to submit their disputes to arbitration, or to the judgment of the emperors.

§333. How we acquire a right of having recourse to force in a doubtful cause,In doubtful causes which do not involve essential points, if one of the parties will not accede either to a conference, an accommodation, a compromise, or an arbitration, the other has only the last resource for the defence of himself and his rights,—an appeal to the sword; and he has justice on his side in taking up arms against so untractable an adversary. For, in a doubtful cause, we can only demand all the reasonable methods of elucidating the question, and of deciding or accommodating the dispute (§331).

§334.and even without attempting other measures.But let us never lose sight of what a nation owes to her own security, nor of that prudence by which she ought constantly to be directed. To authorise her to have recourse to arms, it is not always necessary that every conciliatory measure be first expressly rejected: it is sufficient that she have every reason to believe that the enemy would not enter into those measures with sincerity,—that they could not be brought to terminate in a happy result,—and that the intervening delay would only expose her to a greater danger of being overpowered. 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 induced abruptly to attack him who has not refused to accede to pacific measures, unless he be able to justify his conduct in the eyes of all mankind, by proving that he has reason to consider those peaceable appearances as an artifice employed for the purpose of amusing him, and taking him by surprise. To make his bare suspicions serve as sufficient authority for such a step, would be sapping every foundation on which rests the security of nations.

§335. Voluntary law of nations on this subject.The faith of one nation has ever been suspected by another, and sad experience but too plainly proves that this distrust is not ill-founded. Independence and impunity are a touchstone that discovers the alloy of the human heart: the private individual assumes the character of candour and probity; and, in default of the reality, his dependence frequently obliges him to exhibit in his conduct at least the appearance of those virtues. The great man, who is independent, boasts still more of them in his discourse; but as soon as he finds himself possessed of superior strength, he scarcely endeavours to save appearances, unless his heart be moulded of materials which, unfortunately, are very rare indeed: and if powerful interests intervene, he will give himself a latitude in the pursuit of measures that would cover a private person with shame and infamy. When, therefore, a nation pretends that it would be dangerous for her to attempt pacific measures, she can find abundance of pretexts to give a colour of justice to her precipitation in having recourse to arms. And as, in virtue of the natural liberty of nations, each one is free to judge in her own conscience how she ought to act, and has a right to make her own judgment the sole guide of her conduct with respect to her duties in every thing that is not determined by the perfect rights of another (Prelim. §20), it belongs to each nation to judge whether her situation will admit of pacific measures, before she has recourse to arms. Now, as the voluntary law of nations ordains, that, for these reasons, we should esteem lawful whatever a nation thinks proper to do in virtue of her natural liberty (Prelim. §21), by that same voluntary law, nations are bound to consider as lawful the conduct of that power who suddenly takes up arms in a doubtful cause, and attempts to force his enemy to come to terms, without having previously tried pacific measures. Louis XIV. was in the heart of the Netherlands before it was known in Spain that he laid claim to the sovereignty of a part of those rich provinces in right of the queen his wife. The king of Prussia, in 1741, published his manifesto in Silesia, at the head of sixty thousand men. Those princes might have wise and just reasons for acting thus: and this is sufficient at the tribunal of the voluntary law of nations. But a thing which that law tolerates through necessity, may be found very unjust in itself: and a prince who puts it in practice, may render himself very guilty in the sight of his own conscience, and very unjust towards him whom he attacks, though he is not accountable for it to other nations, as he cannot be accused of violating the general rules which they are bound to observe towards each other. But if he abuses this liberty, he gives all nations cause to hate and suspect him; he authorises them to confederate against him; and thus, while he thinks he is promoting his interests, he sometimes irretrievably ruins them.

§336. Equitable conditions to be offered.A sovereign ought, in all his quarrels, to entertain a sincere desire of rendering justice and preserving peace. He is bound, before he take up arms, and also after having taken them up, to offer equitable conditions: and then alone he is justifiable in ap-pealing to the sword against an obstinate enemy who refuses to listen to the voice of justice or equity.

§337. Possessor’s right in doubtful cases.It is the business of the appellant to prove his right; for he ought to shew a good foundation for demanding a thing which he does not possess. He must have a title: and people are not obliged to respect that title any farther than he shews its validity. The possessor may therefore remain in possession till proof be adduced to convince him that his possession is unjust. As long as that remains undone, he has a right to maintain himself in it, and even to recover it by force, if he has been despoiled of it. Consequently it is not allowable to take up arms in order to obtain possession of a thing to which the claimant has but an uncertain or doubtful right. He is only justifiable in compelling the possessor, by force of arms if necessary, to come to a discussion of the question, to accede to some reasonable mode of decision or accommodation, or, finally, to settle the point by articles of agreement upon an equitable footing (§333).

§338. How reparation of an injury is to be sought.If the subject of the dispute be an injury received, the offended party ought to follow the rules we have just established. His own advantage, and that of human society, require, that, previous to taking up arms, he should try every pacific mode of obtaining either a reparation of the injury or a just satisfaction, unless there be substantial reasons to dispense with his recurrence to such measures (§334). This moderation, this circumspection, is the more becoming, and in general even indispensable, as the action which we look upon as an injury does not always proceed from a design to offend us, and is sometimes rather a mistake, than an act of malice. It even frequently happens that the injury is done by inferior persons, without their sovereign having any share in it: and on these occasions it is natural to presume that he will not refuse us a just satisfaction. When some petty officers, not long since, violated the territory of Savoy in order to carry off from thence a noted smuggling chief, the king of Sardinia caused his complaints to be laid before the court of France; and Louis XV. thought it no derogation to his greatness to send an embassador extraordinary to Turin to give satisfaction for that violence. Thus an affair of so delicate a nature was terminated in a manner equally honourable to the two kings.

§339. Retaliation.When a nation cannot obtain justice, whether for a wrong or an injury, she has a right to do herself justice. But before she declare war (of which we shall treat in the following book), there are various methods practised among nations, which remain to be treated of here. Among those methods of obtaining satisfaction, has been reckoned what is called the law of retaliation, according to which we make another suffer precisely as much evil as he has done. Many have extolled that law, as being founded in the strictest justice:—and can we be surprised at their having proposed it to princes, since they have presumed to make it a rule even for the deity himself? The ancients called it the law of Rhadamanthus. The idea is wholly derived from the obscure and false notion which represents evil as essentially and in its own nature worthy of punishment. We have shewn above (Book I. §169), what is the true origin of the right of punishing; whence we have deduced the true and just proportion of penalties (Book I. §171). Let us say then, that a nation may punish another which has done her an injury, as we have shewn above (see Chap. IV. and VI. of this Book), if the latter refuses to give her a just satisfaction: but she has not a right to extend the penalty beyond what her own safety requires. Retaliation, which is unjust between private persons, would be much more so between nations, because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury. What right have you to cut off the nose and ears of the embassador of a barbarian who had treated your embassador in that manner? As to those reprisals in time of war which partake of the nature of retaliation, they are justified on other principles; and we shall speak of them in their proper place. The only truth in this idea of retaliation is, that, all circumstances being in other respects equal, the punishment ought to bear some proportion to the evil for which we mean to inflict it,—the very object and foundation of punishment requiring thus much.

§340. Various modes of punishing, without having recourse to arms.It is not always necessary to have recourse to arms, in order to punish a nation. The offended party may, by way of punishment, deprive her of the privileges she enjoyed in his dominions,—seize on some of her property, if he has an opportunity,—and detain it till she has given him sufficient satisfaction.

§341. Retortion.When a sovereign is not satisfied with the manner in which his subjects are treated by the laws and customs of another nation, he is at liberty to declare that he will treat the subjects of that nation in the same manner as his are treated. This is what is called retortion. There is nothing in this, but what is conformable to justice and sound policy. No one can complain on receiving the same treatment which he gives to others. Thus the king of Poland, elector of Saxony, enforces the law of escheatage only against the subjects of those princes who make the Saxons liable to it. This retortion may also take place with respect to certain regulations, of which we have no right to complain, and which we are even obliged to approve, though it is proper to guard against their effect, by imitating them. Such are the orders relating to the importation or exportation of certain commodities or merchandise. On the other hand, circumstances frequently forbid us to have recourse to retortion. In this respect, each nation may act according to the dictates of her own prudence.

§342. Reprisals.Reprisals are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another,—if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it,—the latter may seize something belonging to the former, and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages,—or keep it as a pledge till she has received ample satisfaction. In the latter case, it is rather a stoppage or a seizure, than reprisals: but they are frequently confounded in common language. The effects thus seized on are preserved while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and then the reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared or hostilities commenced; and then also the effects seized may be confiscated.

§343. What is required to render them lawful.It is only upon evidently just grounds, or for a well-ascertained and undeniable debt, that the law of nations allows us to make reprisals. For he who advances a doubtful pretension, cannot in the first instance demand any thing more than an equitable examination of his right. In the next place, before he proceed to such extremities, he should be able to shew that he has ineffectually demanded justice, or at least that he has every reason to think it would be in vain for him to demand it. Then alone does it become lawful for him to take the matter into his own hands, and do himself justice. It would be too inconsistent with the peace, the repose, and the safety of nations, with their mutual commerce, and the duties which bind them to each other, that each one should be authorised to have immediate recourse to violent measures, without knowing whether there exist on the other side a disposition to do her justice, or to refuse it.

But in order perfectly to understand this article, it must be observed, that if, in a disputable case, our adversary either refuses to pursue or artfully evades the necessary steps for bringing the matter to the proof,—if he does not candidly and sincerely accede to some pacific mode of terminating the dispute,—especially if he is foremost in adopting violent measures,—he gives justice to our cause which before was problematical: we may then have recourse to reprisals, or the seizure of his effects, in order to compel him to embrace the methods of conciliation which the law of nature prescribes. This is the last remaining effort previous to a commencement of open hostilities.

§344. Upon what effects reprisals are made.We have observed above (§81), that the wealth of the citizens constitutes a part of the aggregate wealth of a nation,—that, between state and state, the private property of the members is considered as belonging to the body, and is answerable for the debts of that body (§82): whence it follows, that in reprisals we seize on the property of the subject just as we would on that of the state or sovereign. Every thing that belongs to the nation is subject to reprisals, whenever it can be seized, provided it be not a deposit intrusted to the public faith. As it is only in consequence of that confidence which the proprietor has placed in our goodfaith, that we happen to have such deposit in our hands, it ought to be respected, even in case of open war. Such is the conduct observed in France, England, and elsewhere, with respect to the money which foreigners have placed in the public funds.

§345. The state ought to compensate those who suffer by reprisals.He who makes reprisals against a nation, on the property of its members indiscriminately, cannot be taxed with seizing the property of an innocent person for the debt of another: for in this case the sovereign is to compensate those of his subjects on whom the reprisals fall; it is a debt of the state or nation, of which each citizen ought only to pay his quota.

§346. The sovereign alone can order reprisals.It is only between state and state that all the property of the individuals is considered as belonging to the nation. Sovereigns transact their affairs between themselves; they carry on business with each other directly, and can only consider a foreign nation as a society of men who have but one common interest. It belongs therefore to sovereigns alone to make and order reprisals on the footing we have just described. Besides, this violent measure approaches very near to an open rupture, and is frequently followed by one. It is therefore an affair of too serious a nature to be left to the discretion of private individuals. And accordingly we see, that, in every civilised state, a subject who thinks himself injured by a foreign nation, has recourse to his sovereign in order to obtain permission to make reprisals. This is what the French call applying for letters of marque.

§347. Reprisals against a nation for actions of its subjects, and in favour of the injured subjects.We may make reprisals against a nation not only for the actions of the sovereign, but also for those of his subjects: and this may take place when the state or the sovereign participates in the act of his subject, and takes it upon himself; which he may do in several ways, as we have shewn in Chap. VI. of this Book.

In the same manner the sovereign demands justice, or makes reprisals, not only for his own concerns, but also for those of his subjects, whom he is bound to protect, and whose cause is that of the nation.

§348. But not in favour of foreigners.But to grant reprisals against a nation in favour of foreigners, is to set himself up as judge between that nation and those foreigners; which no sovereign has a right to do. The cause of reprisals ought to be just: they ought even to be grounded on a denial of justice,—either an actual denial, or one which there is good reason to apprehend (§343). Now what right have we to judge whether the complaint of a stranger against an independent state is just, if he has really been denied justice? If it be objected, that we may espouse the quarrel of another state in a war that appears to us to be just,—to assist her, and even to unite with her,—the case is different. In granting succours against a nation, we do not detain her property or her people that happen to be within our territories under the public faith; and in declaring war against her, we suffer her to withdraw her subjects and her effects, as will hereafter appear. In the case of reprisals granted to our own subjects, a nation cannot complain that we violate the public faith in seizing on her people or her property; because we are under no other obligation to grant security to that property and those people, than what arises from a reasonable supposition that their nation will not in the first instance violate, with respect to us or our subjects, the rules of justice which nations ought to observe towards each other. If she violate them, we have a right to obtain satisfaction; and the mode of reprisals is more easy, safe, and mild, than that of war. We cannot urge the same arguments in justification of reprisals ordered in favour of foreigners. For the security we owe to the subjects of a foreign power does not depend, as a condition, on the security which that power shall grant to all other nations, to people who do not belong to us, and are not under our protection. England having, in 1662, granted reprisals against the United Provinces, in favour of the knights of Malta, the states of Holland asserted with good reason, that, according to the law of nations, reprisals can only be granted to maintain the rights of the state, and not for an affair in which the nation has no concern.

§349. Those who have given cause for reprisals ought to indemnify those who suffer by them.The individuals who by their actions have given cause for just reprisals, are bound to indemnify those on whom they fall; and the sovereign ought to compel them to do it. For we are under an obligation to repair the damage we have occasioned by our own fault. And although the sovereign, by refusing justice to the offended party, has brought on the reprisals against his subjects, those who were the first cause of them do not become the less guilty: the fault of the sovereign does not exempt them from repairing the consequences of theirs. However, if they were ready to give satisfaction to the party whom they had injured or offended, and their sovereign has prevented their doing it, they are not bound to do any thing more in that case, than they would before have been obliged to do in order to prevent the reprisals; and it is the sovereign’s duty to repair the additional damage, which is the consequence of his own fault (§345).

§350. What may be deemed a refusal to do justice.We have said (§343) that we ought not to make reprisals, except when we are unable to obtain justice. Now justice is refused in several ways:—First, by a denial of justice, properly so called, or by a refusal to hear your complaints or those of your subjects, or to admit them to establish their right before the ordinary tribunals. Secondly, by studied delays, for which no good reasons can be given,—delays equivalent to a refusal, or still more ruinous. Thirdly, by an evidently unjust and partial decision. But it is necessary that this injustice should be manifest and palpable. In all cases susceptible of doubt, a sovereign ought not to listen to the complaints of his subjects against a foreign tribunal, nor to attempt to screen them from the effects of a sentence passed in due form: for that would be the means of exciting continual troubles. The law of nations directs that states should reciprocally pay that kind of deference to each other’s jurisdiction, for the same reason as the civil law ordains within the state that every definitive sentence, passed in due form, shall be esteemed just. Between nation and nation, the obligation is neither so express nor so extensive: but it cannot be denied, that it is highly conducive to their peace, and conformable to their duties towards human society, to oblige their subjects, in all doubtful cases, and unless where there is a manifest wrong done to them, to submit to the sentences of the foreign tribunals before which their causes have been tried. (See above §84.)

§351. Subjects arrested by way of reprisals.As we may seize the things which belong to a nation, in order to compel her to do justice, we may equally, for the same reason, arrest some of her citizens, and not release them till we have received full satisfaction. This is what the Greeks called Androlépsia. At Athens the law permitted the relatives of him who had been assassinated in a foreign country, to seize three of the inhabitants of that country, and to detain them till the murderer was punished or delivered up. But in the practice of modern Europe, this method is seldom resorted to, except with a view to obtain satisfaction for an injury of the same nature,—that is to say, to compel a sovereign to release a person whom he detains unjustly.

The persons, however, who are thus arrested, being detained only as a security or pledge in order to oblige a nation to do justice,—if their sovereign obstinately persists in refusing it, we cannot take away their lives, or inflict any corporal punishment upon them, for a refusal, of which they are not guilty. Their property, their liberty itself, may be staked for the debts of the state; but not their lives, of which man has not the power of disposing. A sovereign has no right to put to death the subjects of a state which has done him an injury, except when they are engaged in war; and we shall see elsewhere, what it is that gives him that right.

§352. Our right against those who oppose reprisals.But the sovereign is authorised to employ forcible means against those who resist him in the exertion of his right, and to pursue such means as far as is necessary to overcome their unjust resistance. It is therefore lawful to repel those who undertake to oppose the making of just reprisals: and if, for that purpose, it be necessary to proceed even so far as to put them to death, the whole blame of that misfortune is imputable to their unjust and inconsiderate resistance. In such a case, Grotius would have us rather abstain from making reprisals. Between private persons, and for things that are not of the highest importance, it is certainly worthy, not only of a christian, but, in general, of every man of principle, rather to abandon his right than to kill the person who unjustly resists him. But, between sovereigns, the case is otherwise. To suffer themselves to be bullied, would be attended with consequences of too serious a nature. The true and just welfare of the state is the grand rule: moderation is ever laudable in itself; but the conductors of nations ought to practise that virtue so far only as it is consistent with the happiness and safety of their people.

§353. Just reprisals do not afford a just cause for war.After having demonstrated the lawfulness of making reprisals when we can no otherwise obtain justice, we may thence readily conclude that a sovereign is not justifiable in making forcible opposition to, or waging war against, the party, who, by ordering or making reprisals in such a case, only exerts his just right.

§354. How we ought to confine ourselves to reprisals, or at length proceed to hostilities.And as the law of humanity directs nations as well as individuals ever to prefer the gentlest measures when they are sufficient to obtain justice,—whenever a sovereign can, by the mode of reprisals, procure a just indemnification or a suitable satisfaction, he ought to confine himself to this method, which is less violent and less fatal than war. On this subject, I cannot avoid noticing an error which is too general to be wholly disregarded. If it happens that a prince, having reason to complain of some injustice or some acts of hostility, and not finding his adversary disposed to give him satisfaction, determines to make reprisals with the view of endeavouring to compel him to listen to the voice of justice before he proceeds to an open rupture,—if, without a declaration of war, he seizes on his effects, his shipping, and detains them as pledges,—you hear certain men cry out that this is robbery. If that prince had at once declared war, they would not have said a word; they would perhaps have praised his conduct. Strange forgetfulness of reason, and of every sound principle! Would we not, at this rate, be tempted to suppose that nations were bound to observe the laws of chivalry,—to challenge each other to the lists,—and decide their quarrels like a pair of doughty champions engaged in regular duel? It is the duty of sovereigns attentively to maintain the rights of their people, and to obtain justice by every lawful means,—still, however, prefer-ring the gentlest methods: and we again repeat the assertion—it is evident that the mode of reprisals, of which we are speaking, is infinitely more gentle and less fatal than that of war. But since, between powers whose strength is nearly equal, reprisals often lead to war, they ought not to be attempted except in the last extremity. In such circumstances, the prince who has recourse to that expedient instead of proceeding to an open rupture, is undoubtedly entitled to praise for his moderation and prudence.

Those who run to arms without necessity, are the scourges of the human race, barbarians, enemies to society, and rebellious violators of the laws of nature, or rather the laws of the common father of mankind.

There are cases, however, in which reprisals would be justly condemnable, even when a declaration of war would not be so: and these are precisely those cases in which nations may with justice take up arms. When the question which constitutes the ground of a dispute, relates, not to an act of violence, or an injury received, but to a contested right,—after an ineffectual endeavour to obtain justice by conciliatory and pacific measures, it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility without a declaration of war, and would be contrary to public faith as well as to the mutual duties of nations. This will more evidently appear, when we shall have explained the reasons which establish the obligation of declaring war previous to a commencement of hostilities.

But if, from particular conjunctures, and from the obstinacy of an unjust adversary, neither reprisals, nor any of the methods of which we have been treating, should prove sufficient for our defence and for the protection of our rights, there remains only the wretched and melancholy alternative of war, which will be the subject of the following book.

BOOK III

Of War

CHAPTER I

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

§1. Definition of war.War is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it.

§2. Public war.Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider:—private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.

§3. Right of making war.In treating of the right to security (Book II. Chap. IV.) we have shewn that nature gives men a right to employ force, when it is necessary for their defence, and for the preservation of their rights. This principle is generally acknowledged: reason demonstrates it; and nature herself has engraved it on the heart of man. Some fanatics indeed, taking in a literal sense the moderation recommended in the gospel, have adopted the strange fancy of suffering themselves to be massacred or plundered, ra-ther than oppose force to violence. But we need not fear that this error will make any great progress. The generality of mankind will, of themselves, guard against its contagion,—happy, if they as well knew how to keep within the just bounds which nature has set to a right that is granted only through necessity! To mark those just bounds,—and, by the rules of justice, equity, and humanity, to moderate the exercise of that harsh though too often necessary right,—is the intention of this third book.

§4. It belongs only to the sovereign power.As nature has given men no right to employ force, unless when it becomes necessary for self-defence and the preservation of their rights (Book II. §49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons, except in those rencounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature,—the right of judging whether the nation has real grounds of complaint,—whether she is authorised to employ force, and justifiable in taking up arms,—whether prudence will admit of such a step,—and whether the welfare of the state requires it,—that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. §45).

Thus the sovereign power alone is possessed of authority to make war. But as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. §§31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorised to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace. Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. suffici-ently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.

§5. Defensive and offensive war.War is either defensive or offensive. He who takes up arms to repel the attack of an enemy, carries on a defensive war. He who is foremost in taking up arms, and attacks a nation that lived in peace with him, wages offensive war. The object of a defensive war is very simple; it is no other than self-defence: in that of offensive war, there is as great a variety as in the multifarious concerns of nations: but, in general, it relates either to the prosecution of some rights, or to safety. We attack a nation with a view either to obtain something to which we lay claim, to punish her for an injury she has done us, or to prevent one which she is preparing to do, and thus avert a danger with which she seems to threaten us. I do not here speak of the justice of war: that shall make the subject of a particular chapter:—all I here propose is to indicate, in general, the various objects for which a nation takes up arms,—objects which may furnish lawful reasons, or unjust pretences, but which are at least susceptible of a colour of right. I do not therefore, among the objects of offensive war, set down conquest, or the desire of invading the property of others:—views of that nature, destitute even of any reasonable pretext to countenance them, do not constitute the object of regular warfare, but of robbery, which we shall consider in its proper place.

CHAPTER II

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

§6. Instruments of war.The sovereign is the real author of war, which is carried on in his name, and by his order. The troops, officers, soldiers, and, in general, all those by whose agency the sovereign makes war, are only instruments in his hands. They execute his will and not their own. The arms, and all the apparatus of things used in war, are instruments of an inferior order. For the decision of questions that will occur in the sequel, it is of importance to determine precisely what are the things which belong to war. Without entering here into a minute detail, we shall only observe that whatever is peculiarly used in waging war, is to be classed among the instruments of war; and things which are equally used at all times, such as provisions, belong to peace, unless it be in certain particular junctures when those things appear to be specially destined for the support of war. Arms of all kinds, artillery, gun-powder, salt-petre and sulphur of which it is composed, ladders, gabions, tools, and all other implements for sieges, materials for building ships of war, tents, soldiers’ clothes, &c. these always belong to war.

§7. Right of levying troops.As war cannot be carried on without soldiers, it is evident that whoever has the right of making war, has also naturally that of raising troops. The latter therefore belongs likewise to the sovereign (§4), and is one of the prerogatives of majesty (Book I. §45). The power of levying troops, or raising an army, is of too great consequence in a state, to be intrusted to any other than the sovereign. The subordinate authorities are not invested with it; they exercise it only by order or commission from the sovereign. But it is not always necessary that they should have an express order for the purpose. On those urgent exigencies which do not allow time to wait for the supreme order, the governor of a province, or the commandant of a town, may raise troops for the defence of the town or province committed to their care; and this they do by virtue of the power tacitly given them by their commission in cases of this nature.

I say that this important power is the appendage of sovereignty; it makes a part of the supreme authority. But we have already seen that those rights which together constitute the sovereign power, may be divided (Book I. §§31, 45), if such be the will of the nation. It may then happen that a nation does not intrust her chief with a right so dangerous to her liberty as that of raising and supporting troops, or at least that she limits the exercise of it, by making it depend on the consent of her representatives. The king of England, who has the right of making war, has also, indeed, that of granting commissions for raising troops; but he cannot compel any person to enlist, nor, without the concurrence of parliament, keep an army on foot.

§8. Obligation of the citizens or subjects.Every citizen is bound to serve and defend the state as far as he is capable. Society cannot otherwise be maintained; and this concurrence for the common defence is one of the principal objects of every political association. Every man capable of carrying arms should take them up at the first order of him who has the power of making war.

§9. Enlisting or raising of troops.In former times, and especially in small states, immediately on a declaration of war, every man became a soldier; the whole community took up arms, and engaged in the war. Soon after, a choice was made, and armies were formed of picked men,—the remainder of the people pursuing their usual occupations. At present the use of regular troops is almost every-where adopted, especially in powerful states. The public authority raises soldiers, distributes them into different bodies under the command of generals and other officers, and keeps them on foot as long as it thinks necessary. As every citizen or subject is bound to serve the state, the sovereign has a right, in case of necessity, to enlist whom he pleases. But he ought to choose such only as are fit for the occupation of war; and it is highly proper that he should, as far as possible, confine his choice to volunteers, who enlist without compulsion.

§10. Whether there be any exemptions from carrying arms.No person is naturally exempt from taking up arms in defence of the state,—the obligation of every member of society being the same. Those alone are excepted, who are incapable of handling arms, or supporting the fatigues of war. This is the reason why old men, children, and women, are exempted. Although there be some women who are equal to men in strength and courage, yet such instances are not usual; and rules must necessarily be general, and derived from the ordinary course of things. Besides, women are necessary for other services in society; and, in short, the mixture of both sexes in armies would be attended with too many inconveniences.

A good government should, as far as possible, so employ all the citizens, and distribute posts and employments in such manner, that the state may be the most effectually served in all its affairs. Therefore, when not urged by necessity, it should exempt from military service all those who are employed in stations useful or necessary to society. Upon this ground, magistrates are usually exempted,—their whole time not being too much for the administration of justice, and the maintenance of order.

The clergy cannot naturally, and as matter of right, arrogate to themselves any peculiar exemption. To defend one’s country, is an action not unworthy of the most sacred hands. That article of the canon law which forbids ecclesiastics to shed blood, is a convenient device to exempt from personal danger those men who are often so zealous to fan the flame of discord and excite bloody wars. Indeed, for the same reasons which we have above alleged in favour of magistrates, an exemption from bearing arms should be allowed to such of the clergy as are really useful,—to those who are employed in teaching religion, governing the church, and celebrating the public worship.

But those immense multitudes of useless monks and friars,—those drones, who, under pretence of dedicating themselves to God, dedicate themselves in fact to sloth and effeminacy,—by what right do they pretend to a prerogative that is ruinous to the state? And if the prince exempts them from military service, is he not guilty of injustice to the other members, on whom he thus throws the whole burthen? I do not here mean to advise a sovereign to fill his armies with monks, but gradually to diminish a useless class of men, by depriving them of injurious and ill-founded privileges. History mentions a martial bishop whose weapon was a club, with which he knocked down the enemy, to avoid incurring the censure of the canon-law by shedding their blood. It would be much more reasonable, when monks are exempted from carrying arms, that they should be employed in the works as pioneers, and thus made to alleviate the toil of the soldiers. They have on many occasions zealously undertaken the task in cases of necessity. I could mention more than one famous siege, where monks have usefully served in defence of their country. When the Turks besieged Malta, the ecclesiastics, the women, the very children, all, according to their respective strength or capacity, contributed to that glorious defence which baffled the utmost efforts of the Ottoman empire.

There is another class of idle drones, whose exemption is a still more glaring abuse,—I mean those swarms of useless footmen who crowd the dwellings of the great and the wealthy,—and who, by the very nature of their employment, are themselves corrupted in displaying the luxury of their masters.

§11. Soldiers’ pay and quarters.Among the Romans, while every citizen took his turn to serve in the army, their service was gratuitous. But when a choice is made, and standing armies are kept on foot, the state is bound to pay them, as no individual is under an obligation to perform more than his quota of the public service: and if the ordinary revenues are not sufficient for the purpose, the deficiency must be provided for by taxation. It is but reasonable that those who do not serve should pay their defenders.

When the soldier is not in the field, he must necessarily be provided with quarters. The burthen, in such case, naturally falls on house-keepers: but as that is attended with many inconveniences, and proves very distressing to the citizens, it becomes a good prince, or a wise and equitable government, to ease them of it as far as possible. In this particular, the king of France has made magnificent and ample provision in many towns, by the erection of barracks for the accommodation of the garrison.

§12. Hospitals for invalids.The asylums prepared for indigent soldiers and officers who are grown grey in the service, and whom toil or the enemy’s sword has rendered incapable of providing for their own subsistence, may be considered as part of the military pay. In France and England, magnificent establishments have been made in favour of invalids, which, while they discharge a debt of a sacred nature, do honour to the sovereign and the nation. The care of those unfortunate victims of war is the indispensable duty of every state, in proportion to its ability. It is repugnant, not only to humanity, but to the strictest justice, that generous citizens, heroes who have shed their blood for the safety of their country, should be left to perish with want, or unworthily forced to beg their bread. The honourable maintenance of such persons might very properly be imposed upon rich convents, and large ecclesiastical benefices. Nothing can be more just than that those citizens who avoid all the dangers of war, should bestow part of their riches for the relief of their valiant defenders.

§13. Mercenary soldiers.Mercenary soldiers are foreigners voluntarily engaging to serve the state for money, or a stipulated pay. As they owe no service to a sovereign whose subjects they are not, the advantages he offers them are their sole motive. By enlisting they incur the obligation to serve him; and the prince on his part promises them certain conditions which are settled in the articles of enlistment. Those articles, being the rule and measure of the respective obligations and rights of the contracting parties, are to be religiously observed. The complaints of some French historians against the Swiss troops, who on several occasions formerly refused to march against the enemy, and even withdrew from the service, because they were not paid,—those complaints, I say, are equally ridiculous and unjust. Why should the articles of enlistment be more strongly binding on one of the parties than on the other? Whenever the prince fails to perform what he has promised, the foreign soldiers are discharged from any further duty to him. I own it would be ungenerous to forsake a prince who, without any fault on his own part, is, by accident alone, rendered for a while unable to make good his payments. There may even be occasions when such an inflexibility on the part of the soldier would be, if not contrary to strict justice, at least very repugnant to equity. But this was never the case with the Switzers:—they never were known to quit the service on the first failure of payment; and when they perceived the good intentions of a sovereign labouring under a real inability to satisfy them, their patience and zeal always supported them under such difficulties. Henry the Fourth owed them immense sums: yet they did not, in his greatest necessities, abandon him; and that hero found the nation equally generous as brave. I here speak of the Switzers, because, in fact, those above alluded to were often mere mercenaries. But a distinction is to be made between troops of this kind and those Switzers who at present serve different powers, with the permission of their sovereign, and in virtue of alliances subsisting between those powers and the Helvetic body or some particular canton. The latter are real auxiliaries, though paid by the sovereigns whom they serve.

Much has been said on the question—Whether the profession of a mercenary soldier be lawful, or not,—whether individuals may, for money or any other reward, engage to serve a foreign prince in his wars? This question does not to me appear very difficult to be solved. Those who enter into such engagements without the express or tacit consent of their sovereign, offend against their duty as citizens. But if their sovereign leaves them at liberty to follow their inclination for a military life, they are perfectly free in that respect. Now, every free man may join whatever society he pleases, according as he finds it most to his advantage. He may make its cause his own, and espouse its quarrels. He becomes in some measure, at least for a time, a member of the state in whose service he engages: and as an officer is commonly at liberty to quit the service when he thinks proper, and the private soldier at the expiration of his engagement,—if that state embark in a war which is evidently unjust, the foreigner may quit its service. And the mercenary soldier, having now learned the art of war, has rendered himself more capable of serving his country, if ever she require his assistance. This last consideration will furnish us with an answer to a question proposed on this head—Whether the sovereign can with propriety permit his subjects to serve foreign powers indiscriminately for money? He can, for this simple reason, that his subjects will thus learn an art, of which a thorough knowledge is both useful and necessary. The tranquillity, the profound peace, which Switzerland has so long enjoyed in the midst of all the commotions and wars which have agitated Europe,—that long repose would soon become fatal to her, did not her citizens, by serving foreign princes, qualify themselves for the operations of war, and keep alive their martial spirit.

§14. What is to be observed in their enlistment.Mercenary soldiers enlist voluntarily. The sovereign has no right to compel foreigners: he must not even employ stratagem or artifice in order to induce them to engage in a contract, which, like all others, should be founded on candor and good faith.

§15. Enlisting in foreign countries.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, without the permission of the sovereign; and even with 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 general, 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 kidnapping 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 sufficient 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 acted by order, such a proceeding in a foreign sovereign is justly considered as an injury, and as a sufficient cause for declaring war against him, unless he make suitable reparation.

§16. Obligation of soldiers.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 are far more guilty than the recruiters mentioned in the preceding section.

§17. Military laws.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. He should regulate and fix the authority of commanders in all the gradations of rank,—the punishments to be inflicted on offenders,—the form of trials, &c. The laws and ordinances relative to these several particulars form the military code.

§18. Military discipline.Those regulations, whose particular tendency is to maintain order among the troops, and to enable them to perform their military service with advantage to the state, constitute what is called military discipline. This is of the highest 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 achievements which astonished all Europe. Machiavel says that the Switzers are the masters of all Europe in the art of war. In our times, the Prussians have shewn what may be expected from good discipline and assiduous exercise: soldiers, collected from all quarters, have, by the force of habit and the influence of command, performed all that could be expected from the most zealous and loyal subjects.

§19. Subordinate powers in war.Every military officer, from the ensign to the general, enjoys the rights and authority assigned him by the sovereign; and the will of the sovereign in this respect is known by his express declarations, contained either in the commissions he confers or in the military code,—or is, by fair deduction, inferred from the nature of the functions assigned to each officer: for every man who is intrusted with an employment, is presumed to be invested with all the powers necessary to enable him to fill his station with propriety, and successfully discharge the several functions of his office.

Thus the commission of a commander in chief, when it is simple and unlimited, gives him an absolute power over the army, a right to march it whither he thinks proper, to undertake such operations as he finds conducive to the service of the state, &c. It is true, indeed, that the powers of a general are often limited; but the example of marshal Turenne sufficiently shews, that, when the sovereign is certain of having made a good choice, the best thing he can do in this respect is to give the general an unlimited power. Had the operations 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 commands, and all communication with his sovereign is cut off, that very circumstance confers on him the whole authority of the state, so far as respects the defence of the town and the safety of the garrison.

These particulars merit the utmost attention, as they furnish a principle for determining what the several commanders, who are the subordinate or inferior powers in war, may execute with sufficient authority. Exclusive of the consequences which may be deduced from the very nature of their employments, we are likewise to consider the general practice and established usage in this respect. If it be a known fact, that, in 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.

§20. How their promises bind the sovereign.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 which he naturally derives from his office and the functions intrusted to his care,—every such promise, I say, is, for the reasons above alleged, made in the name and by the authority of the sovereign, and equally obligatory on him, as if he had himself personally 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 garrisons should not carry arms against the enemy with whom they capitulated: and these capitulations have always been faithfully observed.

§21. In what cases their promises bind only themselves.But if a subordinate power allows himself a greater latitude, 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 (B. II. Ch. XIV.). This was the case of the Roman consuls at the Furcae Caudinae. They might indeed agree to deliver hostages, and that their army should pass under the yoke, &c. but