§. 106. To what burdens they are fubject. § 107. continue live under the protection of a ftate, to participate in a variety of advantages that it affords, and yet make no exertion for its defence, but remain an unconcerned fpectator of the dangers to which the citizens are expofed? He cannot indeed be subject to those burdens that have only a relation to the quality of citizens; but he ought to bear his share of all the others. Being exempted from ferving in the militia, and from paying thofe taxes deftined for the fupport of the rights of the nation, he will pay the duties impofed upon provifions, merchandife, &c. and, in a word, every thing that has only a relation to his refidence in the country, or to the affairs which brought him thither. The citizen or the subject of a state who absents himself for a Foreigners time without any intention to abandon the fociety of which he members of is a member, does not lose his privilege by his abfence: he pretheir own ferves his rights, and remains bound by the fame obligations. nation. $108. The state over the Being received in a foreign country, in virtue of the natural fociety, the communication, and commerce, which nations are obliged to cultivate with each other (Prelim. §§ 11 and 12; Book II. § 21), he ought to be confidered there as a member of his own nation, and treated as fuch. The ftate, which ought to refpect the rights of other nations, has no right and in general thofe of all mankind, cannot arrogate to herself any power over the perfon of a foreigner, who, though he has enperfon of a tered her territory, has not become her fubject. The foreigner foreigner; cannot pretend to enjoy the liberty of living in the country without refpecting the laws: if he violates them, he is punishable as a difturber of the public peace, and guilty of a crime against the fociety in which he lives: but he is not obliged to fubmit, like the fubjects, to all the commands of the fovereign and if fuch things are required of him as he is unwilling to perform, he may quit the country. He is free at all times to leave it; nor have we a right to detain him, except for a time, and for very particular reafons, as, for instance, an apprehenfion, in war time, left fuch foreigner, acquainted with the state of the country and of the fortified places, fhould communicate his knowledge to the enemy. From the voyages of the Dutch to the Eaft Indies, we learn that the kings of Corea forcibly detain foreigners who are fhip-wrecked on their coaft; and Bodinus affures us, that a cuftom fo contrary to the law of nations was practifed in his time in Æthiopia, and even in Muscovy. This is at once a violation of the rights of individuals, and of thofe of the ftate to which they belong. Things have been greatly changed in Ruffia; a fingle reign-that of Peter the Great-has placed that vaft empire in the rank of civilifed nations. § 109. nor over his property. The property of an individual does not ceafe to belong to him on account of his being in a foreign country; it still conftitutes a part of the aggregate wealth of his nation (§ 81). Any power, therefore, which the lord of the territory might claim over the property of a foreigner, would be equally derogatory to the rights of the individual owner, and to thofe of the nation of which he is a member. § 110. Since the foreigner still continues to be a citizen of his own Who are country, and a member of his own nation (§ 107), the property the heirs of he leaves at his death in a foreign country ought naturally to de- a foreigner. volve to those who are his heirs according to the laws of the state of which he is a member. But, notwithstanding this general rule, his immovable effects are to be difpofed of according to the laws of the country where they are fituated (fee § 103). Will of a As the right of making a will, or of difpofing of his fortune in cafe of death, is a right refulting from property, it cannot, foreigner. without injuftice, be taken from a foreigner. The foreigner therefore, by natural right, has the liberty of making a will. But it is afked by what laws he is obliged to regulate himself either in the form of his teftament or in the difpofal of his property? 1. As to the form or folemnities appointed to fettle the validity of a will, it appears that the teftator ought to obferve those that are established in the country where he makes it, unless it be otherwife ordained by the laws of the ftate of which he is a member; in which cafe he will be obliged to obferve the forms which they prefcribe, if he would validly difpofe of the property he poffeffes in his own country. I fpeak here of a will which is to be opened in the place where the perfon dies: for if a traveller makes his will, and fends it home under feal, it is the fame thing as if it had been written at home; and in this cafe it is fubject to the laws of his own country. 2. As to the bequests themselves, we have already obferved that those which relate to immovables ought to be conformable to the laws of the country where thofe immovables are fituated. The foreign teftator cannot difpofe of the goods, movable or immovable, which he poffeffes in his own country, otherwife than in a manner conformable to the laws of that country. But as to movable goods, fpecie, and other effects which he poffeffes elsewhere, which he has with him, or which follow his perfon, we ought to diftinguish between the local laws whofe effect cannot extend beyond the territory, and thofe laws which peculiarly affect the character of citizen." The foreigner remaining a citizen of his own country, is ftill bound by thofe laft-mentioned laws, wherever he happens to be, and is obliged to conform to them in the difpofal of his perfonal property, and all his movables whatfoever. The laws of this kind made in the country where he refides at the time, but of which he is not a citizen, are not obligatory with refpect to him. Thus, a man who makes his will and dies in a foreign country, cannot deprive his widow of the part of his movable effects affigned to that widow by the laws of his own country. A Genevan, obliged by the law of Geneva to leave a dividend of his perfonal property to his brothers or his coufins, if they be his next heirs, cannot deprive them of it by making his § 112. will in a foreign country, while he continues a citizen of Geneva: but a foreigner dying at Geneva is not obliged, in this respect, to conform to the laws of the republic. The cafe is quite otherwife with respect to local laws: they regulate what may be done in the territory, and do not extend beyond it. The teftator is no longer fubject to them when he is out of the territory; and they do not affect that part of his property which is alfo out of it. The foreigner is obliged to obferve thofe laws in the country where he makes his will, with refpect to the goods he poffeffes there. Thus, an inhabitant of Neufchatel, to whom entails are forbidden in his own country with refpect to the property he poffeffes there, freely makes an entail of the eftate he poffeffes out of the jurisdiction of the country, if he dies in a place where entails are allowed; and a foreigner making a will at Neufchatel cannot make an entail of even the movable property he poffeffes there,-unlefs indeed we may fuppofe that his movable property is excepted by the fpirit of the law. What we have established in the three preceding fections is fufEfcheatage, ficient to fhew with how little juftice the crown, in fome ftates, lays claim to the effects left there by a foreigner at his death. This practice is founded on what is called Escheatage, by which foreigners are excluded from all inheritances in the ftate, either of the property of a citizen or that of an alien, and confequently cannot be appointed heirs by will, nor receive any legacy. Grotius juftly obferves that this law has defcended to us from thofe ages when foreigners were almost considered as enemies *. Even after the Romans were become a very polite and learned people, they could not accuftom themselves to confider foreigners as men entitled to any right in common with them. "Thofe nations, fays Pomponius the civilian, with whom we "have neither friendship, nor hofpitality, nor alliance, are not "therefore our enemies: yet if any thing belonging to us falls "into their hands, it becomes their property; our free citizens "become flaves to them: and they are on the fame terms with "refpect to us t." We cannot fuppofe that fo wife a people retained fuch inhuman laws with any other view than that of a neceffary retaliation, as they could not otherwife obtain fatisfaction from barbarous nations with whom they had no connection or treaties exifting. Bodinus fhews that Efcheatage is derived from these worthy fources! It has been fucceffively mitigated, or even abolished in most civilifed ftates. The emperor Frederic II. first abolished it by an edict, which permitted all foreigners dying within the limits of the empire to difpofe of their fubfiance by wil, or, if they died inteftate, to have their neareft relations for heirs S. But Bodinus complains that this edict is but ill executed. Why does there still remain any veftige of fo barbarous *De Jure Belli et Pacis, lib. ii. cap. vi. § 14. Digeft. lib. x ix tit xv. De Captivis & Postlimin. § Ibid. a law a law in Europe, which is now fo enlightened and fo full of humanity? The law of nature cannot fuffer it to be put in practice, except by way of retaliation. This is the ufe made of it by the king of Poland in his hereditary ftates. Efcheatage is eftablished in Saxony: but the fovereign is fo juft and equitable, that he enforces it only against those nations which fubject the Saxons to a fimilar law. of taite The right of traite foraine (called in Latin jus detractus) is $11. The right more conformable to justice, and the mutual obligation of nations. We give this name to the right by virtue of which the foraine. fovereign retains a moderate portion of the property either of citizens or aliens which is fent out of his territories to pass into the hands of foreigners. As the exportation of that property is a lofs to the ftate, the may fairly receive an equitable compenfa tion for it. property Every state has the liberty of granting or refusing to foreigners $114. the power of poffeffing lands or other immovable property within ble her territory. If the grants them that privilege, all fuch property, poffeffed by poffeffed by aliens, remains fubject to the jurifdiction and laws an alien. of the country, and to the fame taxes as other property of the fame kind. The authority of the fovereign extends over the whole territory; and it would be abfurd to except fome parts of it, on account of their being poffeffed by foreigners. If the fovereign does not permit aliens to poffefs immovable property, nobody has a right to complain of fuch prohibition; for he may have very good reasons for acting in this manner: and as foreigners cannot claim any right in his territories (§ 79), they ought not to take it amifs that he makes ufe of his power and of his rights in the manner which he thinks moft for the advantage of the ftate. And as the fovereign may refufe to foreigners the privilege of poffeffing immovable property, he is doubtless at liberty to forbear granting it except with certain conditions an nexed. There exifts no natural impediment to prevent foreigners from contracting marriages in the ftate. But if thefe marriages are found prejudicial or dangerous to a nation, fhe has a right, and is even in duty bound to prohibit them, or to fubject to certain conditions the permiflion to contract them: and as it belongs. to the nation or to her fovereign to determine what appears moft conducive to the welfare of the state, other nations ought to acquiefce in the regulations which any fovereign ftate has made on this head. Citizens are almoft every-where forbid to marry foreign wives of a different religion; and in many parts of Switzerland a citizen cannot marry a foreign woman, unless he prove that the brings him in marriage a certain fum fixed by the law. § 1750 Marriages of alicus. $116. What are the rights of which men can not be de prived. $117. Right fill itate of commu nion. CHAP. IX. Of the Rights retained by all Nations after the Introduction of IF F an obligation, as we have before obferved, gives a right to thofe things without which is cannot be fulfilled, every ab folute, neceffary, and indifpenfable obligation produces in this manner rights equally abfolute, neceffary, and indefeafible. Nature impofes no obligations on men, without giving them the means of fulfilling them. They have an abfolute right to the neceffary use of those means: nothing can deprive them of that right, as nothing can difpenfe with their fulfilling their natural obligations. In the primitive ftate of communion, men had, without_diremaining ftinction, a right to the ufe of every thing, as far as was neceffary from the to the difcharge of their natural obligations. And as nothing primitive could deprive them of this right, the introduction of domain and property could not take place without leaving to every man the neceffary ufe of things, that is to fay, the ufe abfolutely required for the fulfilment of his natural obligations. We cannot then fuppofe the introduction to have taken place without this tacit reftriction, that every man fhould ftill preferve fome right to the things fubjected to property, in thofe cafes, where, without this right, he would remain abfolutely deprived of the neceffary use of things of this nature. This right is a neceffary remnant of the primitive ftate of communion. $118. Right retained by over the Notwithstanding the domain of nations, therefore, each nation ftill retains fome right to what is poffeffed by others, in thofe each nation cafes where fhe would find herself deprived of the neceffary use of certain things if the were to be abfolutely debarred from using them by the confideration of their being other people's property. We ought carefully to weigh every circumftance in order to make a juft application of this principle. property of others. § 119. Right of neceffity. I fay the fame of the right of neceffity. We thus call the right which neceffity alone gives to the performance of certain actions that are otherwife unlawful, when, without thefe actions, it is impoffible to fulfil an indifpenfable obligation. But it is carefully to be noted, that, in fuch a cafe, the obligation must really be an indifpenfable one, and the act in queftion the only means of fulfilling that obligation. If either of thefe conditions be wanting, the right of neceffity does not exist on the occafion. We may fee thefe fubjects difcuffed in treatifes on the law of nature, and particularly in that of Mr. Wolf. I confine myself here to a brief fummary of thofe principles whofe aid is neceffary to us in developing the rights of nations. The |