The earth was defigned to feed its inhabitants; and he who $ 120. is in want of every thing is not obliged to ftarve because all Right of pro- procuring perty is vefted in others. When, therefore, a nation is in abfolute want of provifions, the may compel her neighbours, who have by force. more than they want for themfelves, to fupply her with a fhare of them at a fair price: fhe may even take it by force, if they will not not sell it." Extreme neceffity revives the primitive communion, the abolition of which ought to deprive no person of the neceffaries of life (§ 117). The fame right belongs to individuals when a foreign nation refuses them a juft affistance. Captain Bontekoe, a Dutchman, having loft his veffel at fea, efcaped in his boat with a part of his crew, and landed on an Indian coaft, where the barbarous inhabitants refufing him provifions, the Dutch obtained them fword in hand *. belong to In the fame manner, if a nation has a preffing want of the $127. Right of fhips, waggons, horfes, or even the perfonal labour of foreigners, making the may make use of them either by free confent or by force, ufe of the provided that the proprietors be not under the fame neceffity. But as the has no more right to these things than neceflity gives others. her, the ought to pay for the ufe fhe makes of them, if fhe has the means of paying. The practice of Europe is conformable to this maxim. In cafes of neceffity, a nation fometimes prefles foreign veffels which happen to be in her ports; but the pays a compenfation for the fervices performed by them. Right of Let us fay a few words on a more fingular cafe, fince authors § 122. have treated of it,-a cafe in which at prefent people are never recarrying off duced to employ force. A nation cannot preserve and perpetuate women. itself except by propagation. A nation of men has therefore a right to procure women, who are abfolutely neceffary to its prefervation: and if its neighbours, who have a redundancy of females, refule to give fome of them in marriage to thofe men, the latter may juftly 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 conftrained in her choice, nor become, by right, the wife of a man who carries her off by force;-a circumftance which has not been attended to by thofe who have decided, without reftriction, that the Romans did not commit an act of injustice on that occafion. It is true, that the Sabine women fubmitted to their fate with a good grace; and when their nation took up arms to avenge them, it fufficiently appeared from the ardor with which those women rushed between the combatants, that they willingly acknowledged the Romans for their lawful hufbands. 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 ftate: the neighbour *Bontekoe's voyage, in the Voyages of the Dutch to the Eaft-Indies. + Livy, book i. Wolfii Jus Gent. § 341. § 123. Right of paffage; $124. curing ue ing nations had a juft right to refuse them women; and the law of nature, which approves no civil fociety but fuch as is legiti mate, did not require them to furnish that fociety of vagabonds and robbers with the means of perpetuating itself: much lefs did it authorise the latter to procure thofe means by force. In the fame manner, no nation was obliged to furnish the Amazons with males. That nation of women, if it ever exifted, put itself, by its own fault, out of a condition to fupport itself without foreign affiftance. The right of paffage is also a remnant of the primitive state of communion, in which the entire earth was common to all mankind, and the paffage was every-where free to each individual according to his neceflities. Nobody can be entirely deprived of this right (§ 117); but the exercife of it is limited by the introduction of domain and property: fince 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 admiffion into it, you muft, in order to enter it in fpite of him, have fome reafon more cogent than all his reafons to the contrary. Such is the right of neceffity: this authorifes an act on your part, which on other occafions would be unlawful, viz. an infringement of the right of domain. When a real neceffity obliges you to enter into the territory of others,-for inftance, if you cannot otherwise efcape from imminent danger, or if you have no other paffage for procuring the means of fubfiftence, or thofe of fatisfying fome other indifpenfable obligation,-you may force a paffage when it is unjustly refufed. But if an equal neceflity obliges the proprietor to refufe you entrance, he refufes it juftly; and his right is paramount to yours. Thus a vessel driven by ftrefs of weather has a right to enter, even by force, into a foreign port. But if that velel is infected with the plague, the owner of the port may fire upon it and beat it off, without any violation either of juftice, or even of charity, which, in fuch a cafe, ought doubtlefs to begin at home. The right of paffage through a country would in most cafes and of pro- be ufelefs, without that of procuring neceffaries at a fair price: cellaries. and we already fhewn (§ 120) that in cafe of neceflity it is lawful to take provifions even by force. $125. In fpeaking of exile and banithment, we have obferved (Book I. Right of dwelling in §§ 229-231) that every man has a right to dwell fome-where a foreign upon earth. What we have fhewn with refpect to individuals, may country. be applied to whole nations. If a people are driven from the place of their abode, they have a right to feek a retreat: the nation to which they make application ought then to grant them a place of habitation, at least for a time, if fhe has not very im portant reafons for a refufal. But if the country inhabited by this nation is fcarcely fufficient for herself, the is under no obli gation to allow a band of foreigners to fettle in it for ever: the may may even difmifs them at once, if it be not convenient to her to. grant them a permanent fettlement. As they have the resource of feeking an establishment elsewhere, they cannot claim any authority from the right of neceffity, to stay in spite of the owners of the country. But it is neceffary, in fhort, that thefe fugitives fhould find a retreat; and if every body rejects them, they will be juftifiable in making a fettlement in the first country where they find land enough for themselves, without depriving the inhabitants of what is fufficient for them. But, even in this cafe, their neceffity gives them only the right of habitation; and they are bound to fubmit to all the conditions, not absolutely intolerable, which may be impofed on them by the mafter of the country,-such as paying him tribute, becoming his fubjects, or at least living under his protection, and, in certain refpects, depending on him. This right, as well as the two preceding, is a remnant of the primitive ftate of communion. which the We have been occafionally obliged to anticipate the subject of § 126. the prefent chapter in order to follow the order of the different Things, of fubjects that prefented themselves. Thus, in fpeaking of the ufe is ineaopen fea, we have remarked (Book I. § 281) that thofe things, hauftible. the ufe of which is inexhaustible, cannot fall under the domain or property of any one; becaufe, in that free and independent ftate in which nature has produced them, they may be equally useful to all men. And as to thofe things even, which in other refpects are fubject to domain,--if their ufe is inexhaustible, they remain common with refpect to that ufe. Thus a river may be fubject both to domain and empire; but in quality of running water it remains common,-that is to fay, the owner of the river cannot hinder any one from drinking and drawing water out of it. Thus the fea, even in those parts that are held in poffeffion, being fufficient for the navigation of all mankind, he who has the domain cannot refufe a paffage through it to any veflel from which he has nothing to fear. But it may happen, by acsident, that this inexhauftible ufe of the thing may be justly refufed 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 paffing over my land and damaging the crop it bears, I may for that reafon debar you from the inexhaustible use of the running water: in which cafe, 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. § 127. We call innocent ufe, or innocent advantage, that which may be Right of inderived from a thing without caufing either lofs or inconvenience nocent ufc to the proprietor; and the right of innocent fe is the right we have to that advantage or ufe which may be made of things belonging to another, without caufing him either lofs or inconvenience. I have faid that this right is derived from the right to things of which the ufe is inexhaustible. In fact, a thing that may N 3 §. 106. To what burdens they are fubject. § 107. continue live under the protection of a state, 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 fubject 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 provisions, merchandise, &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 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 state, which ought to refpect the rights of other nations, has no right and in general those of all mankind, cannot arrogate to herself over the any power over the person 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 subjects, 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 ftate of the country and of the fortified places, fhould communicate his knowledge to the enemy. From the voyages of the Dutch to the East 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 practised in his time in Ethiopia, and even in Mufcovy. This is at once a violation of the rights of individuals, and of those of the state 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 ftill 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 those of the nation of which he is a member. Since the foreigner ftill continues to be a citizen of his own $110. 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). As the right of making a will, or of difpofing of his fortune Will of a 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 thofe 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, otherwise than in a manner conformable to the laws of that country. But as to movable goods, fpecie, and other effects which he poffeffes elfewhere, 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 |