BOOK I. discourse concerning his hawks, at the time when the depuCHAP. XVII. ties appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the [98] Helvetic confederacy.* The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens who were supported by the neighbouring nobility, and the house of Austria, it made application to the head of the empire: but Charles IV., who was then emperor, declared to its deputies that he could not defend it;-upon which Zurich secured its safety by an alliance with the Swiss.† The same reason has authorized the Swiss, in general, to separate themselves entirely from the empire, which never protected them in any emergency; they had not owned its authority for a long time before their independence was acknowledged by the emperor and the whole Germanic body, at the treaty of Westphalia. CHAP. XVIII. ? 203. Pos country by a nation. CHAP XVIII. OF THE ESTABLISHMENT OF A NATION IN A COUNTRY. HITHERTO we have considered the nation merely with session of a 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. See Etterlin, Simler, and De Watteville. See the same historians, and Bullinger, Stumpf, Tschudi, and Stettler. BOOK I. The country which a nation inhabits, whether that nation has emigrated thither in a body, or the different families of which CHAP. Xviii. it consists were previously scattered over the country, and, there uniting, formed themselves into a political society,that country, I say, is the settlement of the nation, and it has a peculiar and exclusive right to it. This right comprehends two things: 1. The domain, by 204. Its virtue of which the nation alone may use the country for the right over the parts in supply of its necessities, may dispose of it as it thinks pro- its possesper, and derive from it every advantage it is capable of yield- sion. 2. The empire, or the right of sovereign command, by [99] which the nation directs and regulates at its pleasure every thing that passes in the country. When a nation takes possession of a country to which no a 205. Acprior owner can lay claim, it is considered as acquiring the quisition of empire or sovereignty of it, at the same time with the domain. the sovereignty in For, since the nation is free and independent, it can have no a vacant intention, in settling in a country, to leave to others the right country. 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. the empire in a free country. If a number of free families, scattered over an independent & 206. Anocountry, come to unite for the purpose of forming a nation or ther manner state, they altogether acquire the sovereignty over the whole of acquiring 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. to itself a All mankind have an equal right to things that have not ? 207. How yet fallen into the possession of any one; and those things a nation apbelong to the person who first takes possession of them. propriates When, therefore, a nation finds a country uninhabited, and desert counwithout an owner, it may lawfully take possession of it: and, try. after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands. in a desert state, have taken possession of them in the name of their nation: and this title has been usually respected, provided it was soon after followed by a real possession. this subject. But it is questioned whether a nation can, by the bare act & 208. A of taking possession, appropriate to itself countries which it question on does not really occupy, and thus engross a much greater 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 re BOOK 1. pugnant to the views of nature, which, having destined the CHAP. XVIII. 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 [100] those of other nations had, in their transient visits, erected some monument to show their having taken possession of them, they have paid as little regard to that empty ceremony as to the regulation of the popes, who divided a great part of the world between the crowns of Castile and Portugal.* ? 209. Whether it be lawful to possess a part of a 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 country in whose scanty population is incapable of occupying the whole? habited only We have already observed (§ 81), in establishing the obligation to cultivate the earth, that those nations cannot exclu by a few wandering tribes. Those decrees being of a very singular nature, and hardly anywhere to be found but in very scarce books, the reader will not be displeased with seeing here an extract of them. The bull of Alexander VI. by which he gives to Ferdinand and Isabella, king and queen of Castile and Arragon, the New World, discovered by Christopher Columbus. "Motu prio" (says the pope), "non ad vestram, vel alterius pro vobis super hoc nobis oblatæ petitionis instantiam, sed de nostra mera liberalitate, et ex certa scientia, ac de apostolicæ potestatis plenitudine, omnes insulas et terras firmas, inventas et inveniendas, detectas et detegendas, versus occidentem et meridiem," (drawing a line from one pole to the other, at a hundred leagues to the west of the Azores,) "auctoritate omnipotentis Dei nobis in beato Petro concessa, ac vicariatis Jesu Christi, qua fungimur in terris, cum omnibus illarum dominiis, civitatibus, &c., vobis, hæredibusque et successoribus vestris, Castellæ et Legionis regibus, in perpetuum tenore præsentium donamus, concedimus, assignamus, vosque et hæredes ac successores, præfatos, illorum dominos, cum plena libera et omni moda potestate, auctoritate et jurisdictione, facimus, constituimus, et deputamus." The pope excepts only what might be in the ...... See ibid. (Diplom. 165), the bull by which pope Nicholas V. gave to Alphonso, king of Portugal, and to the infant Henry, the sovereignty of Guinea, and the power of subduing the barbarous nations of those countries, forbidding any other to visit that country without the permission of Portugal. This act is dated Rome, on the 8th of January, 1454. vate. BOOK I. CHAP. XVIII. sively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultiTheir unsettled habitation in those immense regions connot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already observed, belongs to mankind. in general, and was designed to furnish them with 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 inha- [101] bitants. 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. When a nation takes possession of a distant country, and 210. Cosettles a colony there, that country, though separated from lonies. 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. CHAP. XIX. OF OUR NATIVE COUNTRY, AND SEVERAL THINGS THAT RELATE TO IT. ? CHAP. XIX. try. THE whole of the countries possessed by a nation and sub- 211. What ject to its laws, forms, as we have already said, its territory, is our counand 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. * History of the English Colonies in North America. BOOK I. The citizens are the members of the civil society; bound CHAP. XIX. to this society by certain duties, and subject to its authority, 212. Citi- they equally participate in its advantages. The natives, or zens and natives. 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 be is born there of a foreigner, it will be [102] only the place of his birth, and not his country. 2 213. In The inhabitants, as distinguished from citizens, are fohabitants. reigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without 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. Na (58) A nation, or the sovereign who represents it, may grant to turalization. a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalization. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens,—for example, that of (58) See fully in general, and of naturalization in Great Britain in particular, 1 Chitty's Commercial Law, 123 to 131; 1 Bla. Com. 369; Bac. Ab. Aliens. A naturalization in a foreign country, without license, will not discharge a natural-born subject from his allegiance, 2 Chalmer's Col. Opin. 363. But a natural-born subject of England, naturalized in America, was holden to be entitled to trade as an American subject to the East Indies, 8 Term Rep. 39, 43, 45; and see Reeves, 2d ed. 328, 330, and 37 Geo. 3, c. 97.-C. {A native citizen of the United States cannot throw off his allegiance to the government, without an Act of Congress authorizing him to do so. Miller v. The Resolution, 2 Dall. 10; Shanks v. Dupont, 3 Pet. S. C. Rep. 246; Coxe v. Melleaine, 4 Cranch, 209; The Santissima Trinidada, 7 Wheat. Rep. 283; The United States v. Gillies, Peter's C. C. Rep. 159.} |