§72.

He ought

not to

fuffer his

and all offence, and how juftice and equity ought to reign between them in their whole conduct. But hitherto we have only confidered the actions of the body of the nation, of the state, of the fovereign. Private perfons, who are members of one nation, may offend and ill-treat the citizens of another, and may injure a foreign fovereign:-it remains for us to examine, what share a ftate may have in the actions of her citizens, and what are the rights and obligations of fovereigns in this respect.

Whoever offends the ftate, injures its rights, disturbs its tran quillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and expofes himfelf to be justly punished for it. Whoever ufes a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the fovereign of the latter fhould avenge his wrongs, punish the aggreffor, and, if poffible, oblige him to make full reparation; fince otherwise the citizen would not obtain the great end of the civil association, which is fafety.

But, on the other hand, the nation or the fovereign ought not to fuffer the citizens to do an injury to the fubjects of another ftate, much less to offend that ftate itself:-and this, not only fubjects to becaufe no fovereign ought to permit those who are under his offend other command to violate the precepts of the law of nature, which their citi forbids all injuries,-but alfo becaufe nations ought mutually to

nations or

zens.

refpect each other, to abstain from all offence, from all injury, from all wrong,-in a word, from every thing that may be of prejudice to others. If a fovereign, who might keep his fubjects within the rules of juftice and peace, fuffers them to injure a foreign nation either in its body or its members, he does no lefs injury to that nation, than if he injured it himself. In short, the fafety of the flate, and that of human fociety, requires this attention from every fovereign. If you let loofe the reins to your fubjects against foreign nations, thefe will behave in the fame manner to you; and, instead of that friendly intercourfe which nature has eftablished between all men, we fhall fee nothing but one vaft and dreadful scene of plunder between nation and nation. $ 73. However, as it is impoflible for the beft regulated state, or for individuals the moft vigilant and abfolute fovereign, to model at his pleaare not to fure all the actions of his fubjects, and to confine them on every be imputed occafion to the most exact obedience, it would be unjust to imtion, pute to the nation or the fovereign every fault committed by the citizens. We ought not then to fay in general, that we have received an injury from a nation, because we have received it from one of its members.

The acts of

to the na

$74. unless it approves

or ratifies them.

But if a nation or its chief approves and ratifies the act of the individual, it then becomes a public concern; and the injured party is to confider the nation as the real author of the injury, of which the citizen was perhaps only the inftrument. Conduct to If the offended ftate has in her power the individual who has be obferved done the injury, the may without fcruple bring him to justice by the of and punish him. If he has efcaped and returned to his own

$75.

fended

party.

country,

country, the ought to apply to his fovereign to have juftice done in the cafe.

§ 76.

aggreffor's

And fince the latter ought not to fuffer his fubjects to molest the fubjects of other states, or to do them an injury, much lefs Duty of the to give open, audacious offence to foreign powers, he ought to fovereign. compel the tranfgreffor to make reparation for the damage or injury, if poffible, or to inflict on him an exemplary punishment, or, finally, according to the nature and circumftances of the cafe, to deliver him up to the offended state, to be there brought to justice. This is pretty generally obferved with refpect to great crimes, which are equally contrary to the laws and fafety of all nations. Affaffins, incendiaries, and robbers, are seized every where, at the defire of the fovereign in whofe territories the crime was committed, and are delivered up to his juftice. The matter is carried ftill farther in ftates that are more closely connected by friendship and good neighbourhood. Even in cafes of ordinary tranfgreffions which are only fubjects of civil profecution either with a view to the recovery of damages or the infliction of a flight civil punishment, the subjects of two neighbouring ftates are reciprocally obliged to appear before the magistrate of the place where they are accufed of having failed in their duty. Upon a requifition of that magiftrate, called Letters Rogatory, they are fummoned in due form by their own magiftrates, and obliged to appear. An admirable inftitution, by means of which many neighbouring states live together in peace, and feem to form only one republic! This is in force throughout all Switzerland. As foon as the Letters Rogatory are iffued in form, the fuperior of the accufed is bound to enforce them. It belongs not to him to examine whether the accufation be true or falfe; he is to prefume on the juftice of his neighbour, and not fuffer any doubts on his own part to impair an inftitution fo well calculated to preferve harmony and good underftanding between the ftates: however, if by conftant experience he fhould find that his subjects are oppreffed by the neighbouring magiftrates who fummon them before their tribunals, it would undoubtedly be right in him to reflect on the protection due to his people, and to refufe the rogatories till fatisfaction were given for the abufes committed, and proper fteps taken to prevent a repetition of them. But in fuch cafe it would be his duty. to allege his reafons, and set them forth them in the cleareft point of view.

$ 77.

If he refufes

fault and

The fovereign who refufes to caufe reparation to be made for the damage done by his fubject, or to punish the offender, or, juftice, he finally, to deliver him up, renders himself in fome measure an becomes a accomplice in the injury, and becomes refponfible for it. But party in the if he delivers up either the property of the offender as an in- offence. demnification in cafes that will admit of pecuniary compenfation, or his perfon, in order that he may fuffer the punishment due to his crime, the offended party has no further demand on him. King Demetrius having delivered to the Romans thofe

M 2

who

$78. Another cafe in

which the

who had killed their ambaffador, the fenate fent them back, refolving to reserve to themselves the liberty of punishing that crime by avenging it on the king himself, or on his dominions *. If this was really the cafe, and if the king had no fhare in the murder of the Roman ambaffador, the conduct of the fenate was highly unjust, and only worthy of men who fought but a pretext to cover their ambitious enterprises.

Finally, there is another cafe where the nation in general is guilty of the crimes of its members. That is when by its manners and by the maxims of its government it accustoms and nation is authorises its citizens indifcriminately to plunder and maltreat guilty of the crimes of foreigners, to make inroads into the neighbouring countries, &c. the citizens. Thus the nation of the Ufbecks is guilty of all the robberies committed by the individuals of which it is compofed. The princes whofe fubjects are robbed and maffacred, and whofe lands are infefted by thofe robbers, may justly level their vengeance against the nation at large. Nay more, all nations have a right to enter into a league against such a people, to repress them, and to treat them as the common enemies of the human race. The christian nations would be no less justifiable in forming a confederacy against the ftates of Barbary, in order to deftroy thofe haunts of pirates, with whom the love of plunder, or the fear of juft punishment, is the only rule of peace and war. But thefe piratical adventurers are wife enough to refpect those who are most able to chastise them; and the nations that are able to keep the avenues of a rich branch of commerce open for themselves, are not forry to fee them shut against others.

CHAP. VII.

Effects of the Domain, between Nations.

W E have explained in Chap. XVIII. Book I. how a nation takes poffeflion of a country, and at the fame time gains poffeffion of the domain and government thereof. That country, with every thing included in it, becomes the property of the nation in general. Let us now fee what are the effects of this property, with refpect to other nations. The full domain is neceffarily a peculiar and exclufive right: for if I have a full right to difpofe of a thing as I pleafe, it thence follows that others have no right to it at all, fince, if they had any, I could not freely difpofe of it. The private domain of the citizens may be limited and restrained in feveral ways by the laws of the ftate, and it always is fo by the eminent domain of the fovereign; but the general domain of the nation is full and abfolute, fince there exifts no authority upon earth by which it can be limited: it therefore excludes all right on the part of foreigners. And as the rights of a nation ought to

*See Polybius, quoted by Barbeyrac, in his notes on Grotius, book iii. chap. xxiv. § vii.

be

be refpected by all others (§ 64), none can form any pretensions to the country which belongs to that nation, nor ought to difpofe of it, without her confent, any more than of the things contained in the country.

$ 80.

compre

The domain of the nation extends to every thing the poffeffes by a juft title: it comprehends her ancient and original poffeffions What is and all her acquifitions made by means which are just in them- h'nded in felves, or admitted as fuch among nations,-conceffions, pur- the domain chafes, conquests made in regular war, &c. And by her poffef of a nation. fions, we ought not only to understand her territories, but all the

rights fhe enjoys.

$81.

tizens is the

Even the property of the individuals is, in the aggregate, to be confidered as the property of the nation, with respect to other The properftates. It, in fome fort, really belongs to her from the right ty of the cithe has over the property of her citizens, because it constitutes a property of part of the fum total of her riches, and augments her power. She the ra on, is interested in that property by her obligation to protect all her withrespect. to foreign members. In fhort, it cannot be otherwife, fince nations act and nations. treat together as bodies, in their quality of political focieties, and are confidered as fo many moral perfons. Al those who form a fociety, a nation, being confidered by foreign nations as conftituting only one whole, one fingle perfon,-all their wealth together can only be confidered as the wealth of that fame person. And this is fo true, that each political fociety may, if it pleafes, eftablifh within itself a community of goods, as Campanella did in his republic of the fun. Others will not inquire what it does in this refpect: its domeftic regulations make no change in its rights with refpect to foreigners, nor in the manner in which they ought to confider the aggregate of its property, in what way foever it is poffeffed.

$ 82. quence of

By an immediate confequence of this principle, if one nation has a right to any part of the property of another, fhe has an indif- Aconte criminate right to the property of the citizens of the latter nation, this princiuntil the debt be difcharged. This maxim is of great ufe, as thall ple. hereafter be fhewn.

$ 82.

of the do

The general domain of the nation over the lands fhe inhabits is naturally connected with the empire: for in establishing herself Connection in a vacant country, the nation certainly does not intend to pof- main of the fefs it in fubjection to any other power: and can we fuppofe an nation with independent nation not vefted with the abfolute command in her the fovedomeftic concerns? Thus we have already obferved (Book I. reignty. $205) that in taking poffeffion of a country the nation is prefumed to take poffeflion of its government at the fame time. We fhall here proceed farther, and thew the natural connection of thefe two rights in an independent nation. How could the govern herself at her own pleafure in the country the inhabits, if the cannot truly and abfolutely difpofe of it? And how could the have the full and abfolute domain of a place where fhe has not the command? Another's fovereignty, and the rights it comprehends, muft deprive her of the free difpofal of that place. Add

to this the eminent domain which constitutes a part of the sovereignty (Book I. § 244), and you will the better perceive the intimate connection exifting between the domain and the fovereignty of the nation. And, accordingly, what is called the high domain, which is nothing but the domain of the body of the nation, or of the fovereign who reprefents it, is every where confidered as infeparable from the fovereignty. The useful domain, or the domain confined to the rights that may belong to an individual in the state, may be feparated from the fovereignty and nothing prevents the poffibility of its belonging to a nation, in places that are not under her jurifdiction. Thus many fovereigns have fiefs, and other poffeffions, in the territories of another prince in these cafes they poffefs them in the manner of private individuals.

The fovereignty united to the domain establishes the jurifdic tion of the nation in her territories, or the country that belongs to her. It is her province, or that of her fovereign, to exercise justice in all the places under her jurifdiction, to take cognifance of the crimes committed, and the differences that arife in the country.

Other nations ought to respect this right. And as the administration of juftice neceffarily requires that every definitive fentence, regularly pronounced, be efteemed juft, and executed as fuch, when once a caufe in which foreigners are interested, has been decided in form, the fovereign of the defendants cannot hear their complaints. To undertake to examine the justice of a definitive fentence, is an attack on the jurifdiction of him who has paffed it. The prince therefore ought not to interfere in the caufes of his fubjects in foreign countries, and grant them his protection, excepting in cafes where juftice is refufed, or palpable and evident injustice done, or rules and forms openly violated, or, finally, an odious diftinction made to the prejudice of his fubjects, or of foreigners in general. The British court'eftablifhed this maxim, with great strength of evidence, on occafion of the Pruffian veffels feized and declared lawful prizes during the last war *. What is here faid has no relation to the merits of that particular cause, fince they must depend on facts.

In confequence of thefe rights of jurifdiction, the decifions made by the judge of the place within the extent of his power, ought to be refpected, and to take effect even in foreign countries. For instance, it belongs to the domeftic judge to nominate tutors and guardians for minors and idiots. The law of nations, which has an eye to the common advantage and the good harmony of nations, requires therefore that fuch nomination of a tutor or guardian be valid and acknowledged in all countries where the pupil may have any concerns. Ufe was made of this maxim in the year 1672, even with respect to a fovereign. The abbé D'Orléans, fovereign prince of Neufchatel in Switzerland,

*See the report made to the king of Great Britain by Sir George Lee, Dr. Paul, Sir Dudley Ryder and Mr. Murray. It is an excellent piece on the law of nations.