BOOK II. necessary use of certain things if she were to be absolutely CHAP. IX. debarred from using them by the consideration of their being other people's property. We ought carefully to weigh every circumstance in order to make a just application of this principle. property of others. 119. Right I say the same of the right of necessity. We thus call the of necessity right which necessity alone gives to the performance of certain actions that are otherwise unlawful, when, without these actions, it is impossible to fulfil an indispensable obligation. But it is carefully to be noted, that, in such a case, the obligation must really be an indispensable one, and the act in question the only means of fulfilling that obligation. If either of these conditions be wanting, the right of necessity does not exist on the occasion. We may see these subjects discussed in treatises on the law of nature, and particularly in that of Mr. Wolf. I confine myself here to a brief summary of those principles whose aid is necessary to us in de[179]veloping the rights of nations. provisions by force. (119) 120. Right The earth was designed to feed its inhabitants; and he who of procuring is in want of every thing is not obliged to starve because all property is vested in others. When, therefore, a nation is in absolute want of provisions, she may compel her neighbours who have more than they want for themselves to supply her with a share of them, at a fair price; she may even take it by force, if they will not sell it. Extreme necessity revives the primitive communion, the abolition of which ought to deprive no person of the necessaries of life (§ 117). The same right belongs to individuals, when a foreign nation refuses them a just assistance. Captain Bontekoe, a Dutchman, having lost his vessel at sea, escaped in his boat, with a part of his crew, and landed on an Indian coast, where the barbarous inhabitants refusing him provisions, the Dutch obtained them sword in hand.* use of the ? 121. Right In the same manner, if a nation has a pressing want of the of making ships, wagons, horses, or even the personal labour of foreigners, she things that make may use of them, either by free consent or by belong to force, provided that the proprietors be not under the same others. (119) necessity. But, as she has no more right to these things than necessity gives her, she ought to pay for the use she makes of them, if she has the means of paying. The practice of Europe is conformable to this maxim. In cases of necessity, a nation sometimes presses foreign vessels which happen to be in her ports; but she pays a compensation for the services performed by them. 2 122. Right Let us say a few words on a more singular case, since auof carrying thors have treated of it-a case in which at present, people off women. (119) See the doctrine of Preemption, Bonketoe's Voyage, in the Voyages 1 Chitty's Com. Law, 103, 104, 105, 446, of the Dutch to the East Indies. 447. BOOK II. are never reduced to employ force. A nation cannot preserve and perpetuate itself, except by propagation. A nation of CHAP. IX. men has, therefore, a right to procure women, who are absolutely necessary to its preservation; and if its neighbours, who have a redundancy of females, refuse to give some of them in marriage to those men, the latter may justly have recourse to force. We have a famous example of this in the rape of the Sabine women.* But, though a nation is allowed to procure for itself, even by force of arms, the liberty of obtaining women in marriage, no woman in particular can be constrained in her choice, nor become, by right, the wife of a man who carries her off by force-a circumstance which has not been attended to by those who have decided, without restriction, that the Romans did not commit an act of injustice on that occasion. It is true that the Sabine women submitted to their fate with a good grace; and, when their nation took up arms to avenge them, it sufficiently appeared, from the ardour with which those women rushed between the combatants, that they willingly acknowledged the Romans for their lawful husbands. We may further add, that, if the Romans, as many pretend, were originally only a band of robbers united under Romulus, they did not form a true nation, or a legitimate state; the [180] neighbouring nations had a just right to refuse them women; and the law of nature, which approves no civil society but such as is legitimate, did not require them to furnish that society of vagabonds and robbers with the means of perpetuating itself; much less did it authorize the latter to procure those means by force. In the same manner, no nation was obliged to furnish the Amazons with males. That nation of women, if it ever existed, put itself, by its own fault, out of a condition to support itself without foreign assistance. The right of passage is also a remnant of the primitive state & 123. Right of communion, in which the entire earth was common to all of passage, mankind, and the passage was everywhere free to each indi- (120) vidual according to his necessities. Nobody Nobody can be entirely deprived of this right (§ 117); but the exercise of it is limited by the introduction of domain and property: since they have been introduced, we cannot exert that right without paying due regard to the private rights of others. The effect of property is, to give the proprietor's advantage a preference over that of all others. When, therefore, the owner of a territory thinks proper to refuse you admission into it, you must, in order to enter it in spite of him, have some reason more * Livy, book i. † Wolfii Jus Gent. 341. (120) See fully 1 Chitty's Com. L., 84; Grotius, book ii. chap. ii. p. 153, states that a nation is bound to grant free passage without reserve or discretion. But Puffendorf appears to agree with Vattel, and states that the law of humanity BOOK II. CHAP. IX. cogent than all his reasons to the contrary. Such is the right of necessity: this authorizes an act on your part, which on other occasions would be unlawful, viz. an infringement of the right of domain. When a real necessity obliges you to enter into the territory of others,-for instance, if you cannot otherwise escape from imminent danger, or if you have no other passage for procuring the means of subsistence, or those of satisfying some other indispensable obligation,-you may force a passage when it is unjustly refused. But, if an equal necessity obliges the proprietor to refuse you entrance, he refuses it justly; and his right is paramount to yours. Thus, a vessel driven by stress of weather has a right to enter, even by force, into a foreign port. But, if that vessel is affected with the plague, the owner of the port may fire upon it and beat it off, without any violation either of justice, or even of charity, which, in such a case, ought doubtless to begin at home. The right of passage through a country would in most cases procuring be useless, without that of procuring necessaries at a fair necessaries. price: and we have already shown (§ 120) that in case of necessity it is lawful to take provisions even by force. 124. and of 125. Right In speaking of exile and banishment, we have observed of dwelling (Book I. §§ 229-231) that every man has a right to dwell in a foreign somewhere upon earth. What we have shown with respect country. to individuals may be applied to whole nations. If a people are driven from the place of their abode, they have a right to seek a retreat the nation to which they make application ought then to grant them a place of habitation, at least for a time, if she has not very important reasons for a refusal. But, if the country inhabited by this nation is scarcely sufficient for herself, she is under no obligation to allow a band of foreigners to settle in it for ever: she may even dismiss [181] them at once, if it be not convenient to her to grant them a permanent settlement. As they have the resource of seeking an establishment elsewhere, they cannot claim any authority from the right of necessity, to stay in spite of the owners of the country. But it is necessary, in short, that these fugitives should find a retreat; and, if everybody rejects them, they will be justifiable in making a settlement in the first country where they find land enough for themselves, without depriving the inhabitants of what is sufficient for them. But, even in this case, their necessity gives them only the right of habitation; and they are bound to submit to all the conditions, not absolutely intolerable, which may be imposed on them by the master of the country,-such as paying him tribute, becoming his subjects, or at least living under his protection, and, in certain respects, depending on him. This right, as well as the two preceding, is a remnant of the primitive state of communion. 126. Things of We have been occasionally obliged to anticipate the subject of the present chapter, in order to follow the order of the haustible. different subjects that presented themselves. Thus, in speak- BOOK 11. ing of the open sea, we have remarked (Book I. § 281) that CHAP. IX. those things, the use of which is inexhaustible, cannot fall which the under the domain or property of any one; because, in that use is inexfree and independent state in which nature has produced them, they may be equally useful to all men. And, as to those things even which in other respects are subject to domain, if their use is inexhaustible, they remain common with respect to that use. Thus a river may be subject both to domain and empire; but, in quality of running water, it remains common, that is to say, the owner of the river cannot hinder any one from drinking and drawing water out of it. Thus, the sea, even in those parts that are held in possession, being sufficient for the navigation of all mankind, he who has the domain cannot refuse a passage through it to any vessel from which he has nothing to fear. But it may happen, by accident, that this inexhaustible use of the thing may be justly refused by the owner, when people cannot take advantage of it without incommoding him or doing him a prejudice. For instance, if you cannot come to my river for water without passing over my land and damaging the crop it bears, I may for that reason debar you from the inexhaustible use of the running water in which case, it is but through accident you are deprived of it. This leads us to speak of another right which has a great connection with that just mentioned, and is even derived from it; that is, the right of innocent use. ૐ We call innocent use, or innocent advantage, that which a 127. Right may be derived from a thing without causing either loss or of innocent inconvenience to the proprietor; and the right of innocent use. use is the right we have to that advantage or use which may be made of things belonging to another, without causing him either loss or inconvenience. I have said that this right is derived from the right to things of which the use is inexhaustible. In fact, a thing that may be useful to any one [182] without loss or inconvenience to the owner, is, in this respect, inexhaustible in the use; and that is the reason why the law of nature still allows all men a right to it notwithstanding the introduction of domain and property. Nature, who designs her gifts for the common advantage of mankind, does not allow us to prevent the application of those gifts to a useful purpose which they may be made to serve without any prejudice to the proprietor, and without any diminution of the utility and advantages he is capable of deriving from his rights. This right of innocent use is not a perfect right, like that? 128. Naof necessity for, it belongs to the owner to judge whether ture of this the use we wish to make of a thing that belongs to him_will neral, not be attended with damage or inconvenience. If others should presume to decide on the occasion, and, in case of refusal, to compel the proprietor, he would be no longer master of his own property. It may frequently happen that the : right in ge BOOK II. person who wishes to derive advantage from a thing shall CHAP. IX. deem the use of it perfectly innocent, though it is not so in fact; and if, in such case, he attempts to force the proprietor, he exposes himself to the risk of committing an act of injustice; nay, he actually commits one, since he infringes the owner's right to judge of what is proper to be done on the occasion. In all cases, therefore, which admit of any doubt, we have only an imperfect right to the innocent use of things that belong to others. 3129. and doubtful. But, when the innocence of the use is evident, and absoin cases not lutely indubitable, the refusal is an injury. injury. For, in addition to a manifest violation of the rights of the party by whom. that innocent use is required, such refusal is moreover a testimony of an injurious disposition of hatred or contempt for him. To refuse a merchant-ship the liberty of passing through a strait, to fishermen that of drying their nets on the seashore, or of watering at a river, is an evident infringement of the right they have to the innocent use of things in those cases. But in every case, if we are not pressed by necessity, we may ask the owner his reasons for the refusal, and if he gives none, we may consider him as an unjust man; or an enemy, with whom we are to act according to the rules of prudence. In general, we should regulate our sentiments and conduct towards him, according to the greater or lesser weight of the reasons on which he acts. 2130. Ex right be tween na tions. All nations do therefore still retain a general right to the ercise of this innocent use of things that are under the domain of any one individual nation. But, in the particular application of this right, it is the nation in whom the property is vested that is to determine whether the use which others wish to make of what belongs to her be really innocent: and, if she gives them a denial, she ought to allege her reasons; as she must not deprive others of their right from mere caprice. All this is founded in justice: for, it must be remembered that the innocent use of things is not comprehended in the domain, or [183] the exclusive property. The domain gives only the right of judging, in particular cases, whether the use be really innocent. Now, he who judges ought to have his reasons; and he should mention them, if he would have us think that he forms any judgment, and not that he acts from caprice or illnature. All this, I say, is founded in justice. In the next chapter, we shall see the line of conduct which a nation is, by her duty to other nations, bound to observe in the exercise of her rights. |