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346 Vattel's Doctrine.
in the imperfect sense. The rights which they define are rights belonging to nations, in respect to other nations and their subjects, and the duties are the duties of nations, towards other nations and their subjects.
This is more particularly true of Vattel,1 whose writings are most relied upon in maintaining the doctrine above stated. The passages in his treatise which have been cited to sustain it, are in Book II., chapters 8, 9, and 10 ; on reference to which it will be seen that he holds it to be the duty of every state, under the law of nations, to allow the subjects of other states a transit or passage through its territories with their property, and that, correlatively, the subjects of any one state have a right to pass through the territories of other states, with their property.
This right, in the citizens or subjects of any one state, he describes as existing in two conditions or degrees ; corresponding to two different degrees of duty in all other states, thus—
a. There is a right in private persons,* founded in their necessities or circumstances, which makes it the imperative duty of a state to allow strangers to enter and leave, and sometimes to pass through its territory, and to carry with them such property as may be necessary for the objects in respect to which their entry or transit is necessary.3
b. There is a less perfect right, arising out of circumstances in which a less imperative duty is laid by the law of nations upon states, requiring them to allow what Vattel denominates "innocent passage" to strangers and their merchandise, even when no such necessity exists as in the former case; thus giving a correlative right to such strangers, to enter and leave or to pass through the territory with their property.4
1 See Vattel, Preliminaries, §§ 1, 2, 3.
* The persons spoken of here are private individuals; a large part of the discusrions of the older writers on the right of transit, refers to the passage of armies and bodies of men having a political unity and national character. Puf., B. III., c. 3, § 5; Grotius, L. H., c. 2. Vattel also speaks of such cases. B. II., §§ 116-124, in ch. IX.
• Vattel, B. II., § 123, in ch. IX., § 135, in ch. X. 4 Vattel. B. II., §§ 132-4, in ch. X.
Pufend. B. III., c 3, § 86, "Among these matters of harmless profit which nature engages us to allowfreely to all men, Grotius reckons the permitting goods and merchandise to be carried through our dominions." Pufendorff and Grotius seem to
Vattel's Doctrine. 347 § 268. The extent of the rights of strangers under this rule is further defined by Vattel, when he shows what the state, in view of its duty in this respect, may not do, and from what portions of the ordinary powers of sovereignty such strangers are exempted. Thus he says that the stranger is still a member of his own nation and treated as such, (B. II., § 107 :) the state cannot claim any power over the person of the foreigner, that is, to detain his person within its territorial dominion, except where he violates its laws, (§ 108 :) it cannot require of him those personal services which it may require of its own citizens, he is not subject to those "laws which have relation to the title of citizen or subject of the state," (§ 101,) that is, the law which determines the rights and duties of private persons in a relation between them and the state regarded as their sovereign. "He cannot indeed be subject to those burdens that have only a relation to the quality of citizen," (§ 106.)
And, as regards the duty of the state towards the stranger in relations with respect to things, the state does not acquire over the property which he has with him, nor even over what he may there acquire, the same power which it has in respect to the property of a citizen, (§ 109.) The property which he brings with him does not cease to belong to him, merely on account of his having come to a foreign country, (§ 109 :) the state, in reference to which he is an alien, cannot take it away, nor attach burdensome conditions to its possession or enjoyment; and he is not subject to pay ordinary taxes levied on citizens, but only such as are laid for public improvements of which he, in common with the citizen, has the benefit, such as tolls, on rivers and roads, harbor duties, &c., (§ 132-144.)1
Not only is the right of the stranger, as a private person, to be respected, but his property is to be regarded as part of the wealth of the country of which he is citizen, § 104, 81: in confound the right on a general right in all mankind to use the earth for purposes of commerce, and they limit the right of bringing property to cases where it is brought for gain. Pufendorff connects the inquiry with the propriety of markets of the staple, to which, in some countries, foreign traders were then restricted; being also obliged to buy of, and sell to citizens only.
1 And Puf. B. III., c. 3, § 6, discusses the question of levies on passing rivers and straits; such as the Danish Sound levies.
348 INTERNATIONAL STANDARD OF PROPERTY.
sequence of which its possession, after his decease in the foreign country, is to be determined not by its laws, but by those of the former, (§ 109-113.)
§ 269. No mention is made of slaves, as property or otherwise, by Vattel: but taking the term "law of nations," as used by Lavie, to be equivalent to the same term as used by Vattel, i. e., as a law acting on nations as its subjects, the proposition of the former—that it is contrary to the law of nations to take from the stranger a property which belongs to him—is equally maintained by the latter.
But to whatever degree this maxim may limit the power of a state, in reference to strangers, there must be some standard, included in the rule, of what is and what is not property. The duty of the state and the correlative right being created by international law, a law acting on nations as its subjects, the standard of property or the definition of property, must be one included in that law. • And so far as these writers, Pufendorff, Vattel, and others, are relied on as the authority for the rule, their definition or description of property is receivable in interpreting the rule.
§ 270. Now Vattel and Pufendorff are among those who assume the existence of a law of nature ; that is, a law which they, individually, derive a priori,* which they declare is the law binding on all mankind, and they define the law of nations to be the same law applied to nations, states, or independent sovereignties, as its subjects.3 It would appear therefore that the opinion of these authors, as to what is, or is not property by the law of nature, must be received in applying a rule stated by them as acting on nations as its subjects. If these authors do not recognize men as things by the law of nature, or if they declare that all natural persons have, by the law of nature, rights which are inconsistent with the legal quality of things—
1 Nothing being said to imply that it is determined by the national law of a single state. The criterion is therefore independent both of the criterion of property in the state wherein the claimant is a foreigner, and that whose citizen or subject he is.
1 Compare ante, p. 16, note 4.
* Vattel, Prelim., §§ i, 6.
INTERNATIONAL STANDARD OF PROPERTY. 349
the objects of action, or objects of possession and property— then no nation, as a subject of the rule above stated, is bound to recognize any natural person as a chattel or thing, the object of property or possession. Vattel makes no mention of slavery in his works, and, in sec. 4 of the Preliminaries, says: "It is a settled point with writers on the natural law that all men inherit from nature perfect liberty and independence, of which they cannot be deprived without their own consent."1
§ 271. This criterion for determining whether Vattel and Pufendorff intended, in using the term property in a rule of international law, to recognize property in slaves, should be sufficient to decide question so far as the rule rests upon their authority. But if the rule is received independently of any particular jurist, and if it is proper, in matters of law, to reject all a priori statements of a law of nature, still a standard of what is or is not property, embraced in international law, must somewhere exist. This can only be the law of nature derived a posteriori, or those definitions, rules, maxims, &c., which, in point of fact, have been recognized by nations (whether they ought or ought not to be so recognized.) And this is nothing else than universal jurisprudence or the law of nations, in that sense, which may enter into public international law as well as into private international law."
This law of nations, universal jurisprudence, is changeable; so that the applicability of the rule above stated to a question of personal condition or status, at the time referred to, would depend upon the question—whether, in point of fact, the chattel slavery of natural persons was or was not customarily recognized by nations in their respective municipal (national) laws.
§ 272. It will be seen that, in this view, the question of the right of a stranger to hold slaves as property or chattels, under
1 Pufendorff considers the legal nature of slavery very fully in B. III., c. 8, § 6. B. VI., c. 3, §§ 2, 8, taking the same view; while admitting the lawfulness of bondage or slavery of legal persons. In B. IV., c. 4, treating of the origin of dominion or property, he ascribes it to human compact or institution; but, it must be noticed, that he there means the right of private property as opposed to community, not the distinction of property from persons.
5 Compare ante, §§ 10, 19, 49; and see 1 Phillimore Int. Law, § 223, and Appendix L
350 Vattbl's Doctbine.
the rule laid down by Vattel, is almost identical with that which, it has herein been supposed, would have existed in the different parts of the British empire during the colonial period; —whether the right of the master, of British race or descent, in respect to his African or Indian slave, was a "common law right," or incidental to the common law right of property and to be supported, as such, in every part of the empire. In each case the question is of the recognition of slavery in universal jurisprudence, the historical law of nations.
The support given to slavery by this international rule of transit, considered in this connection, will therefore be hereinafter ascertained, when pursuing the inquiry, how far slavery could be supported by recognition of the common law right of the master.
§ 273. But, aside from this question of what shall or shall not be considered property, Vattel does not say that, in consequence of the state's duty, created under international law, the law of the state will not affect the stranger in his person or property ; or that his relations towards other persons, either in respect to persons or in respect to things will not be affected by the law of the state in which he is found. On the contrary, he states that, with the exceptions already mentioned, the general private law of the forum applies to strangers as well as citizens, or as he says, "the general laws made to maintain good order and which have no relation to the title of citizen or of subject of the state," &c. (B. II., § 101.) And although in this place the thought of the author was principally directed to that part of the laws which maintains good order by a system of police and punishment, yet the whole passage shows that in these "general laws" he intended to include that law which decides on the possession and security of property, or what is sometimes called " the law of meum et tuum."
In the next section, (§ 103), Vattel declares, "For the same reason, [i. e., this subjection to the "general laws,"] 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."