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 also out of it. The foreigner is obliged to obferve those 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 estate he poffeffes out of the jurifdiction 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,-unless indeed we may fuppofe that his movable property is excepted by the fpirit of the law.

§112. 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 Echeatage, by
which foreigners are excluded from all inheritances in the
state, 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 observes 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 confi-
der foreigners as men entitled to any right in common with them.
"Those 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 +." We cannot fuppofe that fo wife a people re-
tained fuch inhuman laws with any other view than that of a ne-
ceffary retaliation, as they could not otherwife obtain satisfaction
from barbarous nations with whom they had no connection or
treaties exifting. Bodinus fhews that Efcheatage is derived
from thefe worthy fources! It has been fucceffively miti-
gated, or even abolished in most civilifed ftates. The emperor
Frederic II. firft abolifhed it by an edict, which permitted all fo-
reigners dying within the limits of the empire to difpofe of their fub-
flance by will, or, if they did inteftate, to have their nearest relations
for heirs §. But Bodinus complains that this edict is but ill exe-
cuted. Why does there ftill remain any veftige of fo barbarous

* De Jure Belli et Pacis, lib. ii. cap. vi. §14.
Digeft. lib. xix tit xv. De Captivis & Poftlimin.
His Republic, book i. chap. vi.
§ 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 thofe nations which fubject the Saxons to a fimilar law.

The right

The right of traite foraine (called in Latin jus detractûs) is $ ་་༣. more conformable to juftice, and the mutual obligation of na- of taite tions. 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 state, she may fairly receive an equitable compenfation for it.

property

Every state has the liberty of granting or refufing to foreigners $114. the power of poffeffing lands or other immovable property within mo 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 li berty to forbear granting it except with certain conditions an

nexed.

There exifts no natural impediment to prevent foreigners from § 1.15. contracting marriages in the state. But if these But if these marriages are Marriages of alicus. 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 most conducive to the welfare of the ftate, 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 fhe brings him in marriage a certain fum fixed by the law.

$116. What are the rights

men can

not be de

CHAP. IX.

Of the Rights retained by all Nations after the Introduction ef
Domain and Property.

IF

an obligation, as we have before obferved, gives a right to thofe things without which is cannot be fulfilled, every abof which 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 ufe of those means: nothing can deprive them of that right, as nothing can difpenfe with their fulfilling their natural obligations.

prived.

117.

itate of

commu

In the primitive ftate of communion, men had, without diRight fill remaining ftinction, a right to the use of every thing, as far as was neceffary from the to the discharge of their natural obligations. And as nothing 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 use 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 some right to the things fubjected to property, in thofe cafes, where, without this right, he would remain abfolutely deprived of the necessary use of things of this nature. This right is a neceflary remnant of the primitive ftate of communion.

$118.

over the

Notwithstanding the domain of nations, therefore, each nation Right retained by ftill retains fome right to what is poffeffed by others, in those each nation cafes where fhe would find herfelf deprived of the necessary 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 neceflity alone gives to the performance of certain actions that are otherwife unlawful, when, without these 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 difcufied 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

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 provifions want of provifions, the may compel her neighbours, who have by force. more than they want for themfelves, to fupply her with a share of them at a fair price: fhe may even take it by force, if they will not not fell 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 refufes them a juft affiftance. 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 coast, 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. thing that 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 he pays a compenfation for the fervices performed by them.

carrying off

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 re- Right of duced to employ force. A nation cannot preferve 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, refufe to give fome of them in marriage to thofe men, the latter may juftly have recourfe to force. We have a famous example of this in the rape of the Sabine women t. 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 thofe 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 ftate: the neighbour

* Bontekot's voyage, in the Voyages of the Dutch to the Eaft-Indies.

Livy, book i

Wolfi Jus Gent. § 341.

N 2

ing

123Right of paffage;

curing ue

ing nations had a just right to refuse them women; and the law of nature, which approves no civil fociety but fuch as is legitimate, did not require them to furnish that fociety of vagabonds and robbers with the means of perpetuating itself: much less 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 alfo 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 neceflitics. 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 instance, if you cannot otherwife efcape from imminent danger, or if you have no other paffage for procuring the means of fubfistence, or thofe of fatisfying fome other indifpenfable obligation,-you may force a paffage when it is unjustly refufed. But if an equal neceffity obliges the proprietor to refuse you entrance, he refuses it juftly; and his right is paramount to yours. Thus a veffel driven by ftrefs of weather has a right to enter, even by force, into a foreign port. But if that veflel 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.

$124. 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: ceffaries. and we already fhewn (§ 120) that in cafe of neceflity it is lawful to take provifions even by force.

$125.

Right of

country.

In fpeaking of exile and banithment, we have obferved (Book I. SS 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 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 important reafons for a refufal. But if the country inhabited by this nation is fcarcely fufficient for herfelf, the is under no obli gation to allow a band of foreigners to fettle in it for ever: the

may