BOOK II. words, to injure them. (94) And, since the perfection of a CHAP. I. nation consists in her aptitude to attain the end of civil so ciety 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 manouvres 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. (95) 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 (94) This position, however, requires qualification; for, whether in time of peace or of war, a nation has a right to diminish the commerce or resources of another by fair rivalry and other means not in themselves unjust, precisely as one tradesman may by fair competition undersell his neighbour, and thereby alienate his customers.-C. (95) An instance of this rule is, the illegality of any commercial intercourse with a revolted colony before its separate independence has been acknowledged. A contract made between a revolted colony in that character with the subject of another state that has not as yet recognised such revolted colony as an independent state, is illegal and void, and will not be given effect to by the Court of Chancery, or any other court in this country. City of Berne v. Bank of England, 9 Ves. 347; Jones v. Garcia del Rio, 1 Turner & Russ. 297; Thompson v. Powles, 2 Sim. Rep. 202, 3; De Wutz v. Hendricks, 2 Bing. 314; Yrisarri v. Clement, 11 Moore, 308; 2 Car. & P. 223; 3 Bing. 432; for, such direct recognition of such a revolted colony must necessarily be offensive to the principal state to which it belonged; and, in the American war, Great Britain declared war against France and other countries on the ground of their improper interference between her and her colonies, Thompson v. Powles, 2 Sim. Rep. 203, 212, 3, and in Biré v. Thompson, cited id. and id. 222, Lord Eldon refused to take notice of the Republic of Colombia: and it seems that, if a bill in equity falsely state that the colony had been recognised as an independent state, the court may take judicial notice of the contrary, and decree or proceed accordingly; and the mere fact of this country having for commercial purposes sent a consul to a revolted colony, is not equivalent to a state recognition of its independence; Taylor v. Barclay, 2 Sim. 213, and Yrisarri v. Clement, 11 Moore, 308; 2 Carr. & P. 223; 3 Bing. 432, cited id. 219; {The United States v. Palmer, 3 Wheat. Rep. 610.} To supply such a revolted colony (or even any independent state) with money, without leave of the government to which a subject belongs, is illegal, because that would be assisting such colony against the parent country to which it belongs; and also because it would create objects and interests on the part of the subject that might in case of war be injurious to his own government. Observations in Thompson v. Powles, 2 Sim. Rep. 203, and Hennings v. Rothschild, 12 Moore, 559; 4 Bing. 315, 335; 9 Bar. & Cres. 470; Yrisarri v. Clement, 11 Moore, 308; 2 Car. & P. 223; 3 Bing. 432. {See The Santissima Trinidada, 7 Wheat. Rep. 283.} 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. BOOK II. CHAP. I. Nothing is more opposite to the duties of humanity, nor ? 19. Ofmore contrary to that society which should be cultivated by fences. 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 excite such asperity and rancour between nations that we should avoid giving any room even for ill-grounded [ 143 ] piques, when it can be done without any inconveniency, or failure in our duty. It is said that certain medals and dull jests irritated Louis XIV. against the United Provinces to such a degree as to induce him, in 1672, to undertake the destruction of that republic. (96) the ancients. The maxims laid down in this chapter,-those sacred pre- 2 20. Bad cepts of nature,-were for a long time unknown to nations. custom of 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 civilized nations; they perceived that all men are brethren.† When will the happy time come that they shall behave as such? (96) On this ground it was held that the publication in England of a libel upon Bonaparte, then first consul of the French republic, was an indictable offence, as calculated to stir up animosity between him and the citizens of the republic, and to create discord between our king and people and said Bonaparte and said republic. Information against Peltier filed in Crown Office, K. B., in Michaelmas Term, 43 Geo. 3-1 Camp. 352. {Adam's Rep. of Peltier's Trial, Lond. 1803.} So Lord Hawkesbury laid it down to be clear "that a foreign power has a right to apply to foreign courts of judicature and obtain redress for defamation or calumny," 6 Russell's Modern Europe, 20, and see post, page 173, end of note; To the example of the Romans † See 1, a fine passage of Cicero. BOOK II. CHAP. II. ? 21. Gene ral obligation of na ry on mutual commerce. CHAP. II. OF THE MUTUAL COMMERCE BETWEEN NATIONS. ALL men ought to find on earth the things they stand in need of. In the primitive state of communion, they took them tions to car- 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 [144] 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. (97) (97) The restrictions on trade, which have been enforced absolutely or conditionally, by almost all the powerful nations of the world, have been the cause of a thousand wars, and the ground-work of innumerable treaties; and, therefore, it is important that we should give them full consideration. With respect to the freedom of trade, it has been laid down by the wisest of politicians and best of men, that every nation ought not only to countenance trade as far as it reasonably can, but even to protect and favour it; and that, 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; and this position is supported by the reasons thus urged by Vattel (supra, 821). It was this feeling that influenced that celebrated statesman, Mr. Pitt, in concluding the commercial treaty with France, in 1786. Great Britain and France had, for centuries before, contrary to every sound principle of policy, Every nation ought, therefore, not only to countenance BOOK II. trade, as far as it reasonably can, but even to protect and fa- CHAP. II. vour it. The care of the public roads, the safety of travel- § 22. They lers, the establishment of ports, of places of sale, of well- should faregulated fairs, all contribute to this end. And, where these vour trade. 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. trade. Freedom being very favourable to commerce, it is implied, § 23. Freein the duties of nations, that they should support it as far as dom of 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 com acted as rival enemies, and their commercial policy was dictated by the same spirit which prompted their unhappy wars; insomuch, that, though they possessed the materials of a most extensive commerce-the one abounding in all that art and industry can supply, and the other in productions of a more favoured soil and climatethe exchange of their peculiar produce was discouraged by a complicated system of restraint and heavy duties.† The object of the commercial treaty alluded to was, to abolish those pernicious restraints, and, by connecting the two countries in the bonds of a reciprocal trade, to pledge them, by their mutual interest, to an oblivion of their ancient animosities. The view in which that treaty originated was explained by Mr. Pitt, when it was subImitted to Parliament; and the sentiments which he expressed gave to this measure a remarkable character of moderation and wisdom. In reply to an argument inculcating constant jealousy of France, he inquired, "whether, in using the word jealousy, it was meant to recommend to this country such a species of jealousy as should be either mad or blind, such a species of jealousy as should induce her either madly to throw away what was to make her happy, or blindly grasp at that which must end in her ruin? Was the necessity of a perpetual animosity with France so evident and so pressing that for it we were to sacrifice every com mercial advantage we might expect from a friendly intercourse with that country? or, was a pacific connection between the two kingdoms so highly offensive that even an extension of commerce could not counterpoise it?" Towards the close of the same speech, he observes, "The quarrels between France and Britain had too long continued to harass not only those two great nations themselves, but had frequently embroiled the peace of Europe; nay, had disturbed the tranquillity of the most remote parts of the world. They had, by their past conduct, acted as if they were intended for the destruction of each other; but he hoped the time was now come when they should justify the order of the universe, and show that they were better calculated for the more amiable purposes of friendly intercourse and mutual benevolence." "Considering the treaty," he continued, "in a political view, he should not hesitate to contend against the too frequently advanced doctrine, that France was and must be the unalterable enemy of Britain; his mind revolted from this position as monstrous and impossible. To suppose that any nation was unalterably the enemy of another, was weak and childish: it had neither its foundation in the experience of nations nor in the history of man. It was a libel on the constitution of political societies, and supposed diabolical malice in the original frame of man."-C. 2 Smith's Wealth of Nations, pp. 226-7, 252-3; Tucker's Pamphlet, Cui Bono. † See Smith's Wealth of Nations, vol. 4, 169, per Buchanan; and see Anderson's Hist. Com. vol. 4, pp. 634 to 639. nations. BOOK II. merce, are deservedly to be reprobated, unless founded on CHAP. II. very important reasons arising from the public good. § 24. Right Every nation, in virtue of her natural liberty, has a right of trading, to trade with those who are willing to correspond with such belonging to intentions; and to molest her in the exercise of her right is doing her an injury. (98) 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 there 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 I. on her own § 98); and since, in case of collision, her duties to herself are part.(99) 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, fore, 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 [145] 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. Ne. These few remarks, together with what we have already (98) It is a general rule of the law of nations, that, in time of peace, no nation is entitled to limit or impose regulations upon the commerce which any other independent state may think fit to carry on, either externally, with the natives of other independent states, or internally, amongst its own subjects. Puffend. b. 4, c. 5, s. 10, p. 168; Marten's L. N. 152-3; where see the different authorities in support of this position. It there seems that an exclusive trade may be acquired by a treaty with the nations of India who have not before entered into a restrictive treaty. See also 1 Chit. Com. L. 76.-C. (99) See further, 1 Chit. Com. L. 80, n. 2; Grotius, 158; Puff. b. 4, c. 5, s. 10, p. 168. (100) See, more fully, 1 Chitty's Com. L. 35. |