OF COMMERCE. BOOK I. subject to those laws in its national capacity; so that the natural and necessary law of nations is no other than the law CHAP. VIII. 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. (36) We cannot apply the same reasoning to the right of selling 2 89. Right such things as we want to part with. Every man and every of selling. nation being perfectly at liberty to buy a thing that is to be sold, or not to buy it, and to buy it of one rather than of another the law of nature gives to no person whatsoever any kind of right to sell what belongs to him to another who does not wish to buy it; neither has any nation the right of selling her commodities or merchandise to a people who are unwilling to have them. chandises. [ 39 ] Every state has consequently a right to prohibit the en- 290. Protrance of foreign merchandises; and the nations that are hibition of affected by such prohibition have no right to complain of it, foreign meras if they had been refused an office of humanity. (37) Their complaints would be ridiculous, since their only ground of complaint would be, that a profit is refused to them by that nation, who does not choose they should make it at her exIt is, however, true, that if a nation was very certain pense. that the prohibition of her merchandises was not founded on any reason drawn from the welfare of the state that prohibited them, she would have cause to consider this conduct as a mark of ill-will shown in this instance, and to complain of it on that footing. But it would be very difficult for the excluded nation to judge with certainty that the state had no solid or apparent reason for making such a prohibition. buying. By the manner in which we have shown a nation's right to 2 91. Nabuy of another what it wants, it is easy to see that this right ture of the is not one of those called perfect, and that are accompanied right of with a right to use constraint. Let us now distinctly explain 'the nature of a right which may give room for disputes of a You have a right to buy of others such very serious nature. things as you want, and of which they themselves have no need; you make application to me: I am not obliged to sell them to you, if I myself have any occasion for them. In virtue of the natural liberty which belongs to all men, it is I who am to judge whether I have occasion for them myself, or (36) See note (36) preceding page. porting prohibited goods, or permitted 107. BOOK I. CHAP. VIII. 292. Every far it will engage in commerce. 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. Since then a nation cannot have a natural right to sell her nation is to merchandises to another that is unwilling to purchase them, choose how 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 [40] that other a right; and every one is at liberty to affix what conditions he pleases to a right which he grants of his own accord. (37) 893. How Men and sovereign states may, by their promises, enter nation ac- into a perfect obligation with respect to each other, in things quires a per- where nature has imposed only an imperfect obligation. A fect right to nation, not having naturally a perfect right to carry on a trade. commerce with another, may procure it by an agreement or a foreign 294. Of the simple permission of commerce. 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. A simple permission to carry on commerce with a nation (37) With respect to commercial intercourse with the colonies of a parent state of Europe, all the European nations which have formed settlements abroad have so appropriated the trade of those settlements to themselves, either in exclusively permitting their own subjects to partake of it, or in granting a monopoly to trading companies, that the colonies themselves cannot legally carry on hardly any direct trade with other powers; consequently the commerce in those possessions is not free to foreign nations; and they are not even permitted to land in the country, or to enter with their vessels within cannon shot of the shore, except only in cases of urgent necessity. This has now become generally the understanding and law of nations as regards colonies; and the ships, &c. violating the rule are liable to seizure. Marten's Law of Nations, 150 to 152; Bird v. Appleton, 8 Term Rep. 562; 1 Chitty's Commercial Law, 79, 211 to 244, 470, 631.-C. CHAP. VIII. gives no perfect right to that commerce. For if I merely BOOK I and simply permit you to do any thing, I do not give you 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 choose 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. ther the We have seen what are the rights that nations derive from ? 95. Whenature with regard to commerce, and how they may acquire laws relatothers by treaties: let us now examine whether they can ing to comfound any on long custom. To determine this question in a merce are solid manner, it is necessary first to observe, that there are subject to rights which consist in a simple power: they are called in prescription. (38) Latin, jura meræ facultatis, rights of mere ability. They are such in their own nature that he who possesses them may use them or not, as he thinks proper-being absolutely free from all restraint in this respect; so that the actions that relate to the exercise of these rights are acts of mere free will, that may be done or not done, according to pleasure. It is manifest that rights of this kind cannot be lost by pre- [ 41 ] scription, on account of their not being used, since prescription is only founded on consent legitimately presumed; and that, if I possess a right which is of such a nature that I may or may not use it, as I think proper, without any person having a right to prescribe to me on the subject, it cannot be 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 (38) See further, Grotius, 158; Puffendorf, B. 4, chap. 5, s. 10, p. 168; 1 Chit. Com. Law, 80, 81.-C. BOOK I. of it, and have obeyed with sufficient marks of consent. Let CHAP. VIII. 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 chooses to carry it on (§ 92), the right of commerce is evidently a right of mere ability (jus meræ facultatis), a simple power, and consequently is imprescriptible. Thus, although two nations have treated together, without interruption, during a century, this long usage does not give any right to either of them; nor is the one obliged on this account to suffer the other to come and sell its merchandises, or to buy others:-they both preserve the double right of prohibiting the entrance of foreign 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. (40) Although they have, in the same manner, been long accustomed to sell their cloth in that kingdom, they have, nevertheless, a right to transfer that trade to any other country: and the Portuguese, on their part, are not obliged by this long custom, either to sell their wines to the English, or to purchase their cloths. If a nation desires any right of commerce which shall no longer depend on the will of another, she must acquire it by treaty. (40) 3 96. Impre- What has been just said may be applied to the rights of scriptibility commerce acquired by treaties. If a nation has by this method procured the liberty of selling certain merchandises to another, founded on she does not lose her right, though a great number of years of rights treaty. (40) The perpetual obligation to purchase Port wines from Portugal in exchange for British woollen cloths was established by the celebrated treaty of Methuen, A. D. 1703 (so called because concluded by Sir P. Methuen), with Portugal: a treaty which has been censured by some as evidently advantageous to Portugal and disadvantageous to Great Britain. 2 Smith, W. N. 338 to 341; Tucker on Trade, 356; and 1 Chitty's Commercial Law, 619. -C. are suffered to elapse without its being used; because this BOOK I. right is a simple power, jus mera facultatis, which she is at CHAP. VIII. liberty to use or not, whenever she pleases. Certain circumstances, however, may render a different decision necessary, because they imply a change in the nature of the right in question. For instance, if it appears evident, that the nation granting this right granted it only with a view of procuring a species of merchandise of which she stands in need, and if the nation which obtained the right of selling neglects to furnish those merchandises, and another offers to bring them regularly, on condition of having an exclusive privilege, it appears certain that the privilege may be granted to the latter. Thus the nation that had the right of selling would lose it, because she had not fulfilled the tacit condition. and trading Commerce is a common benefit to a nation; and all her ? 97. Of members have an equal right to it. Monopoly, therefore, in monopolies, general, is contrary to the rights of the citizens. However, companies, this rule has its exceptions, suggested even by the interest of with excluthe nation and a wise government may, in certain cases, sive privijustly establish monopolies. There are commercial enter- leges. (41) prises that cannot be carried on without an energy that (41) See the advantages and disadvantages resulting from commercial Companies and foreign monopolies, and upon colonization in general, 1 Chitty's Commercial Law, 631 to 689; and see some sensible observations on the Impolicy of Exclusive Companies, Evans on Statutes, Class III. title Insurance, p. 231. Dr. Adam Smith, in his Wealth of Nations, book iv. c. 7, p. 379, &c. and Dean Tucker, in his Essay on Trade, 67 to 71 (but see Id. 40, 41), admit, that, to induce speculating and enterprising individuals to embark their capitals in expensive undertakings, probably generally beneficial in the result, but which could not be pursued by single individuals, it may be expedient originally to afford them a monopoly; but that, after they have acquired a liberal profit, the trade ought to be thrown open. Again, when a country becomes too densely populated, and many subjects are out of employ and restless, then there may be another reason for encouraging the creation of foreign companies. A celebrated diplomatist, and an acute observer of human nature (M. Talleyrand), has justly said, that the art of putting men into their proper places is, perhaps, the first science of government; but that of finding the proper place for the discontented is assuredly |