BOOK II. CHAP. X. CHAP. X. HOW A NATION IS TO USE HER RIGHT OF DOMAIN, IN ORDER SINCE the law of nations treats as well of the duties of states as of their rights, it is not sufficient that we have explained, on the subject of innocent use, what all nations have a right to require from the proprietor: we are now to consider what influence his duties to others ought to have on the proprietor's conduct. As it belongs to him to judge whether the use be really innocent, and not productive of any detriment or inconvenience to himself, he ought not to give a refusal unless it be grounded upon real and substantial reasons: this is a maxim of equity: he ought not even to stop at trifles, -a slight loss, or any little inconvenience: humanity forbids this; and the mutual love which men owe to each other, requires greater sacrifices. It would certainly be too great a deviation from that universal benevolence which ought to unite the human race, to refuse a considerable advantage to an individual, or to a whole nation, whenever the grant of it might happen to be productive of the most trifling loss or the slightest inconvenience to ourselves. In this respect, therefore, a nation ought on all occasions to regulate her conduct by reasons proportioned to the advantages and necessities of others, and to reckon as nothing a small expense or a supportable inconvenience, when great good will thence result to another nation. But she is under no obligation to incur heavy expenses or embarrassments, for the sake of furnishing others with the use of any thing, when such use is neither necessary nor of any great utility to them. The sacrifice we here require is not contrary to the interests of the nation:-it is natural to think that the others will behave in the same manner in return; and how great the advantages that will result to all states from such a line of conduct! 131. General duty of the pro prietor. ? The introduction of property cannot be supposed to have a 132. Indeprived nations of the general right of traversing the earth nocent pasfor the purposes of mutual intercourse, of carrying on com- sage. (121) merce with each other, and for other just reasons. It is only on particular occasions, when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through [184] it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. (121) See, in general, 1 Chitty's Com. Law, 84, 88. And he can BOOK II. not lawfully annex burdensome conditions to a permission CHAP. X. which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property. The count of Lupfen having improperly stopped some merchandise in Alsace, and complaints being made on the subject to the emperor Sigismund, who was then at the council of Constance, that prince assembled the electors, princes, and deputies of towns, to examine the affair. The opinion of the burgrave of Nuremberg deserves to be mentioned: "God," said he, "has created heaven for himself and his saints, and has given the earth to mankind, intending it for the advantage of the poor as well as of the rich. The roads are for their use, and God has not subjected them to any taxes." He condemned the count of Lupfen to restore the merchandise, and to pay costs and damages, because he could not justify his seizure by any peculiar right. The emperor approved this opinion, and passed sentence accordingly.' 2133. Sure required. But, if any apprehension of danger arise from the grant ties may be of liberty to pass through a country, the state has a right to require sureties: the party who wishes to pass cannot refuse them, a passage being only so far due to him as it is attended with no inconvenience. 3 134. Pas chandise. (122) In like manner, a passage ought also to be granted for sage of mer- merchandise: and, as this is in general productive of no inconvenience, to refuse it without just reason is injuring a nation, and endeavouring to deprive her of the means of carrying on a trade with other states. If this passage occasions any inconvenience, any expense for the preservation of canals and highways, we may exact a compensation for it by toll duties (Book I. § 103). 135. Resi dence in the country. In explaining the effects of domain we have said above (§§ 64 and 100) that the owner of the territory may forbid the entrance into it, or permit it on such conditions as he thinks proper. We were then treating of his external right, -that right which foreigners are bound to respect. But now that we are considering the matter in another view, and as it relates to his duties and to his internal right, we may venture to assert that he cannot, without particular and important reasons, refuse permission, either to pass through or reside in the country, to foreigners who desire it for lawful purposes. For, their passage or their residence being in this case an innocent advantage, the law of nature does not give him a right to refuse it: and, though other nations and other men in general are obliged to submit to his judgment (§§ 128 and 130), he does not the less offend against his duty, if he refuses without sufficient reason: he then acts without any true right; he only abuses his external right. He cannot, therefore, Stettler, vol. i. p. 114. Tschudi, vol. ii. pp. 27, 28. (122) Puffendorf, b. 3, ch. 3, s. 6, p. 29. without some particular and cogent reason, refuse the liberty of residence to a foreigner who comes into the country with the hope of recovering his health, or for the sake of acquiring instruction in the schools and academies. A difference in religion is not a sufficient reason to exclude him, provided he do not engage in controversial disputes with a view to disseminate his tenets: for, that difference does not deprive him of the rights of humanity. BOOK II. CHAP. X. We have seen (§ 125) how the right of necessity may in a 136. How certain cases authorize a people, who are driven from the we are to place of their residence, to settle in the territory of another act towards foreigners nation. Every state ought, doubtless, to grant to so unfor- who desire tunate a people every aid and assistance which she can be- a perpetual stow without being wanting to herself: but to grant them an residence. establishment in the territories of the nation, is a very delicate step, the consequences of which should be maturely considered by the conductor of the state. The emperors Probus and Valens experienced the evil effects of their conduct in having admitted into the territories of the empire numerous bands of Gepida, Vandals, Goths, and other barbarians.* If the sovereign finds that such a step would be attended with too great an inconvenience or danger, he has a right to refuse an establishment to those fugitive people, or to adopt, on their admission, every precaution that prudence can dictate to him. One of the safest will be, not to permit those foreigners to reside together in the same part of the country, there to keep up the form of a separate nation. Men who have not been able to defend their own country, cannot pretend to any right to establish themselves in the territory of another, in order to maintain themselves there as a nation in a body. The sovereign who harbours them may therefore disperse them, and distribute them into the towns and provinces that are in want of inhabitants. In this manner his charity will turn to his own advantage, to the increase of his power, and to the greater benefit of the state. What a difference is observable in Brandenburg since the settlement of the French refugees! The great elector, Frederic William, offered an asylum to those unfortunate people; he provided for their expenses on the road, and with truly regal munificence established them in his states; by which conduct that beneficent and generous prince merited the title of a wise and able politician. When, by the laws or the custom of a state, certain actions ? 137. Right are generally permitted to foreigners, as, for instance, tra- accruing Vopiscus, Prob. e. xviii.-Ammian. Marcell. lib. xxxi.-Socrat. Hist. Eccles. lib. iv. c. 28. † Cesar replied to the Tenchtheri and Usipetes, who wanted to retain possession of the territories they had seized, that it was not just for them to Х. BOOK II. CHAP. X. from a ge neral permission. [186] ? 138. A right grant ed as a fa vour. 139. The teous. Velling freely through the country without any express permission, marrying there, buying or selling merchandise, hunting, fishing, &c., we cannot exclude any one nation from the benefit of the general permission, without doing her an injury, unless there be some particular and lawful reason for refusing to that nation what is granted indiscriminately to others. The question here, it is to be observed, only relates to those actions which are productive of innocent advantage: and, as the nation allows them to foreigners without distinction, she, by the very nature of that general permission, affords a sufficient proof that she deems them innocent with respect to herself; which amounts to a declaration that foreigners have a right to them (§ 127): the innocence of such acts is manifested by the confession of the state; and the refusal of an advantage that is manifestly innocent, is an injury (§ 129). Besides, to attempt without any reason to lay one nation under a prohibition where an indiscriminate permission is enjoyed by all others, is an injurious distinction, since it can only proceed from hatred or contempt. If there be any particular and well-founded reason for the exception, the advantage resulting from the act in question can no longer be deemed an innocent one with respect to the excepted nation; consequently no injury is done to them. The state may also, by way of punishment, except from the general permission a people who have given her just cause of complaint. As to rights of this nature granted to one or more nations for particular reasons, they are conferred on them as favours, either by treaty, or through gratitude for some particular service: those to whom the same rights are refused cannot consider themselves as offended. The nation does not esteem the advantage accruing from those acts to be an innocent one, since she does not indiscriminately allow them to all nations: and she may confer on whom she pleases any rights over her own property, without affording just grounds to anybody else, either for uttering a complaint, or forming pretensions to the same favour. Humanity is not confined to the bare grant of a permission nation ought to foreign nations to make an innocent use of what belongs to be cour- to us: it moreover requires that we should even facilitate to them the means of deriving advantage from it, so far as we can do this without injury to ourselves. Thus, it becomes a well-regulated state to promote the general establishment of inns where travellers may procure lodging and food at a fair price, to watch over their safety, and to see that they be treated with equity and humanity. A polite nation should give the kindest reception to foreigners, receive them with politeness, and on every occasion show a disposition to oblige them. By these means every citizen, while he discharges his duty to mankind in general, will at the same time render essential services to his country. Glory is the certain reward of virtue; and the good-will which is gained by an amia- CHAP. X. ble character, is often productive of consequences highly important to the state. No nation is entitled to greater praise in this respect than the French: foreigners nowhere meet a reception more agreeable, or better calculated to prevent their regretting the immense sums they annually spend at Paris. CHAP. XI. OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. (123) LET us conclude what relates to domain and property with an examination of a celebrated question on which the learned are much divided. It is asked whether usucaption and prescription can take place between independent nations and states. [ 187 ] CHAP. XI. and pre Usucaption is the acquisition of domain founded on a long 140. Depossession, uninterrupted and undisputed-that is to say, finition of an acquisition solely proved by this possession. Wolf defines usucaption it, an acquisition of domain founded on a presumed desertion. scription. His definition explains the manner in which a long and peaceable possession may serve to establish the acquisition of domain. Modestinus, Digest, lib. 3, de Usurp. et Usucap., says, in conformity to the principles of the Roman law, that usucaption is the acquisition of domain by possession continued during a certain period prescribed by law. These three definitions are by no means incompatible with each other; and it is easy to reconcile them by setting aside what relates to the civil law in the last of the three. In the first of them, we have endeavoured clearly to express the idea commonly affixed to the term usucaption. Prescription is the exclusion of all pretensions to a rightan exclusion founded on the length of time during which that right has been neglected: or, according to Wolf's definition, it is the loss of an inherent right by virtue of a presumed consent. This definition, too, is just; that is, it explains how a right may be forfeited by long neglect; and it agrees with the nominal definition we give of the term, prescription, in which we confine ourselves to the meaning usually annexed to the word. As to the rest, the term usucaption is but little used in French; and the word prescription implies, in that (123) We have seen that twenty years' creates a right. See ante, 125 to 127; undisturbed possession or enjoyment of and see Benest v. Pipon, Knapp's Rep. an easement or profit amongst nations, 60 to 73; where see the law of nations as well as amongst private individuals, fully examined.-C. |