said on the subject (Book I. Chap. VIII.), may suffice to BOOK II. establish the principles of the natural law of nations respect-_CHAP. II. ing 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. concerning Since a nation has a full right to regulate herself in com- § 27. Genemercial affairs by what is useful or advantageous to her, she ral rule may make such commercial treaties as she thinks proper those treaand no other nation has a right to take offence, provided ties. 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. As express promises and engagements should be inviolable, § 28. Duty every wise and virtuous nation will be attentive to examine of nations and weigh a commercial treaty before she concludes it, and in making to take care that she be not thereby engaged to any thing ties. contrary to the duties which she owes to herself and others. those trea treaties, or Nations may, in their treaties, insert such clauses and con- § 29. Perditions as they think proper; they are at liberty to make petual or them perpetual, or temporary, or dependent on certain events. temporary It is usually most prudent not to engage for ever, as circum- [ 146 ] stances may afterwards intervene, by which the treaty might treaties rebecome very oppressive to one of the contracting parties. A vocable at nation may confine a treaty to the grant of only a precarious pleasure. 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), BOOK II. give any perfect right to a trade. These things-namely, CHAP. II. permission and customs-are therefore not to be confounded with treaties,-not even with those which give only a precarious right. $ 30. Nothing contenor of a trary to the treaty can be granted to a third party. $31. How far lawful to give up by treaty the liberty of 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. 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 trading with 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 insures 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 that 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). other na tions. § 32. A nation may commerce another. Every one is at liberty to renounce his right; a nation, therefore, may lay a restriction on her commerce in favour abridge its of another nation, and engage not to traffic in a certain kind in favour of 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 [147] 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. Nations not only carry on trade for the sake of procuring to itself a necessary or useful articles, but also with a view to make it BOOK II. a source of opulence. Now, wherever a profit is to be made, CHAP. II. it is equally lawful for every one to participate in it: but the § 33. A namost diligent may lawfully anticipate the others by taking tion may possession of an advantage which lies open to the first occu- appropriate pier; he may even secure the whole entirely to himself, if particular he has any lawful means of appropriating it. When, there- branch of fore, a particular nation is in sole possession of certain articles, trade. 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 priceother nations would be authorized 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. Among the modern institutions for the advantage of com- $ 34. Conmerce, one of the most useful is that of consuls, or persons (101) See further as to consuls, post, B. 4, ch. 8, s. 75, p. 461. This and the following sections are much too concise upon the important subject of consuls. See more fully 1 Chitty's Commercial Law, 48 to 73; statute 6 Geo. 4, c. 87; Warden on Consular Establishments, Paris, A. D. 1813; Madame de Steck, a Berlin, 1790; Anderson's Hist. Commerce, index, `titles, "Conservator," and "Consul;" and see decisions Albreton v. Sussman, suls. (101) CHAP. II. BOOK II. 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 [148] 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 good understanding with each other. But the surest way is, expressly to settle all these matters, as far as practicable, by the commercial treaty. attachment in the State courts, Kid- a Ravara, 2 Dall. Rep. 297; Comm. v. BOOK II. CHAP. II. 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 prohi bition, he had caused goods to be unloaded in a time of con- [ 149 ] tagion. This consul's successor 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. CHAP. III. OF THE DIGNITY AND EQUALITY OF NATIONS OF TITLES, AND CHAP. III. OTHER MARKS OF HONOUR. sovereign EVERY nation, every sovereign and independent state, § 35. Digdeserves consideration and respect, because it makes an im- nity of namediate figure in the grand society of the human race, is tions or independent of all earthly power, and is an assemblage of a states. 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 a 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. |