had been in the fame fituation the year before. Being attacked by a band of rebellious citizens who were fupported by the neighbouring nobility and the house of Auftria, it made application to the head of the empire: but Charles IV. who was then emperor, declared to its deputies that he could not defend it ;upon which, Zurich fecured its fafety by an alliance with the Swifs. The fame reafon has authorised the Swifs in general to separate themselves entirely from the empire, which never protected them in any emergency: they had not owned its authority for a long time before their independence was acknowledged by the emperor and the whole Germanic body, at the treaty of Weftphalia. Of the Establishment of a Nation in a Country. Poffeffion of refpect to itfelf, without any regard to the country it pof$203 HITHERTO we have confidered the nation merely with by a nation. feffes. Let us now fee it established in a country, which be a country $204. Its right over the comes its own property and habitation. The earth belongs to mankind in general; deftined by the creator to be their common habitation, and to fupply them with food, they all poffefs a natural right to inhabit it, and to derive from it whatever is neceffary for their fubfiftence, and fuitable to their wants. But when the human race became extremely multiplied, the earth was no longer capable of furnishing fpontaneoufly, and without culture, fufficient fupport for its inhabitants; neither could it have received proper cultivation from wandering tribes of men continuing to poffefs it in common. It therefore became neceffary that thofe tribes fhould fix themfelves fomewhere, and appropriate to themfelves portions of land, in order that they might, without being difturbed in their labour, or disappointed of the fruits of their induftry, apply themfelves to render thofe lands fertile, and thence derive their fubfiftence. Such muft have been the origin of the rights of property and dominion: and it was a fufficient ground to justify their establishment. Since their introduction, the right which was common to all mankind is individually reftricted to what each lawfully poffeffes. The country which a nation inhabits, whether that nation has emigrated thither in a body, or that the different families of which it confifts were previoufly fcattered over the country, and there uniting, formed themfelves into a political fociety, that country, I fay, is the fettlement of the nation, and it has a peculiar and exclufive right to it. This right comprehends two things: 1. The domain, by vir tue of which the nation alone may ufe this country for the fupparts in its ply of its neceffities, may difpofe of it as it thinks proper, and poffeflion. * See the fame hiftorians, and Bullinger, Stumpf, Tfchudi, and Stettler. 6 derive derive from it every advantage it is capable of yielding.-2. The empire, or the right of fovereign command, by which the nation directs and regulates at its pleasure every thing that paffes in the country. reignty in When a nation takes poffeffion of a country to which no prior § 205. owner can lay claim, it is confidered as acquiring the empire or Acquifition of the fovefovereignty of it, at the fame time with the domain. For fince the nation is free and independent, it can have no intention, in a vacant fettling in a country, to leave to others the right of command, or country. any of thofe rights that conftitute fovereignty. The whole fpace over which a nation extends its government, becomes the feat of its jurifdiction, and is called its territory. acquiring If a number of free families, fcattered over an independent $206. country, come to unite for the purpose of forming a nation or Another ftate, they all together acquire the fovereignty over the whole manner of country they inhabit; for they were previously in poffeffion of the empire the domain, a proportional share of it belonging to each indivi- in a free dual family and fince they are willing to form together a poli- country. tical fociety, and establish a public authority which every member of the fociety fhall be bound to obey, it is evidently their intention to attribute to that public authority the right of command over the whole country. All mankind have an equal right to things that have not yet § 207. fallen into the poffeflion of any one; and thofe things belong to How a nathe perfon who firft takes poffeflion of them. When therefore tion appro priates to a nation finds a country uninhabited and without an owner, it itfelf a demay lawfully take poffeffion of it: and after it has fufficiently fert counmade known its will in this refpect, it cannot be deprived of it try. by another nation. Thus navigators going on voyages of difcovery, furnished with a commiffion from their fovereign, and meeting with iflands or other lands in a defert ftate, have taken poffeffion of them in the name of their nation: and this title has been ufually refpected, provided it was foon after followed by a real poffeffion. § 208. on this fub ject. But it is queftioned whether a nation can, by the bare act of taking poffeffion, appropriate to itself countries which it A queftion does not really occupy, and thus engrofs a much greater extent of territory than it is able to people or cultivate. It is not difficult to determine, that fuch a pretenfion would be an abfolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to fupply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will therefore not acknowledge the property and fovereignty of a nation over any uninhabited countries, except thofe of which it has really taken actual poffeffion, in which it has formed fettlements, or of which it makes actual ufe. In effect, when navigators have met with defert countries in which thofe of other nations had, in their tranfient vifits, erected § 209. Whether it be lawful part of a country inhabited only by a few wan dering tribes. fome monument to fhew their having taken poffeffion of them, they have paid as little regard to that empty ceremony, as to the regulation of the popes, who divided a great part of the world between the crowns of Caftile and Portugal * There is another celebrated queftion, to which the discovery of the new world has principally given rife. It is afked whether to poffefs a a nation may lawfully take pofleflion of fome part of a vast country, in which there are none but erratic nations whofe fcanty population is incapable of occupying the whole? We have already obferved (§ 81), in eftablilhing the obligation to cultivate the earth, that thofe nations cannot exclufively appropriate to themfelves more land than they have occafion for, or more than they are able to fettle and cultivate. Their unfettled habitation in thofe immenfe regions cannot be accounted a true and legal poffeffion; and the people of Europe, too closely pent up at home, finding land of which the favages ftood in no particular need, and of which they made no actual and conftant ufe, were lawfully entitled to take poffeffion of it, and settle it with colonies. The earth, as we have already obferved, belongs to mankind in general, and was defigned to furnish them with fubfiftence: if each nation had from the beginning refolved to appropriate to itfelf a vaft country, that the people might live only by hunting, fifhing, and wild fruits, our globe would not be fufficient to maintain a tenth part of its prefent inhabitants. *Thofe decrees being of a very fingular nature, and hardly any where to he found but in very fcarce books, the reader will not be difpleased with seeing here an extract of them. The bull of Alexander VI. by which he gives to Ferdinand and Ifabella, king and queen of Caftile and Arragon, the New World, dilcovered by Chriftopher Columbus. "Motu proprio, (fays the pope) non ad veftram, vel alterius pro vobis super hoc "nobis oblata petitionis inftantiam, fed de noftra meia liberalitate, & ex certa fcientia, ac de apoftolicæ poteftatis plenitudine, omnes iniulas & terras firmas, "inventas, & inveniendas, detectas & detegendas verfus occidentem & meridiem," (drawing a line from one pole to the other, at an hundred leagues to the west of the Azores) "auctoritate omnipotentis Dei nobis in beato Petro conceffa, ac vica"riatus Jefu Chrifti, qua fungimur in terris, cum omnibus illarum dominiis, "civitatibus, &c. vobis, hæredibufque & fuccefforibus veftris, Caftellæ & Legionis regibus, in perpetuum tenore præfentium donamus, concedimus, affigna"mus; vfque, & hæredes ac fucceffores præfatos, illorum dominos, cum plena, "libera & omn moda poteflate, auctoritate & jurifdictione, facimus, conftituimus " & deputamus' The pope excepts only what might be in the poffeffion of fome other Christian prince before the year 1493,- as if he had a greater right to give what belonged to nobody, and efpecially what was poffeffed by the American nations-He adds: "Ac quibufcunque perfonis cujufcunque dignitatis, ctiam imperialis & regalis, ftatus, gradus, ordinis, vel conditionis, fub excommunicationis "tæ fententie pena, quam eo ipfo, fi contra fecerint, incurrant, diftrictius in"hibemus ne ad infulas & terras firmas inventas & inveniendas, detectas & detegendas, verfus occidentem & meridiem. .. pro mercibus habendis, vel quavis alia de caufa, accedere præfumant abfque veftra ac hæredum & fuccefforum veftrorum prædictorum licentia fpeciali, &c. Datum Romæ apud 6. Pe "trum arno 1493. IV. not as Maji, Pontific. noftri anno primo." Leibnitii Codex Juris Gent. Diplomat. Diplom. 203. ..... Sec ibid. Diplom. 165.) the bull by which pope Nicholas V. gave to Alphonfo, king of Portugal, and to the Infant Henry, the overeignty of Guinea, and the power of fubduing the barbarous nations of thofe countries, forbidding any other. to vifit that country, without the permiflion of Portugal. This at is dated Rome on the 8th of January, 1454. People We do not therefore deviate from the views of nature in confining the Indians within narrower limits. However, we cannot help praifing the moderation of the English puritans who firft fettled in New England; who, notwithstanding their being furnished with a charter from their fovereign, purchased of the Indians the land of which they intended to take poffeffion *. This laudable example was followed by William Penn and the colony of quakers that he conducted to Pennfylvania. When a nation takes poffeffion of a diftant country, and fettles $210. a colony there, that country, though feparated from the prin- Colonies. cipal establishment, or mother country, naturally becomes a part of the ftate, equally with its ancient poffeffions. Whenever therefore the political laws, or treaties, make no diftinction between them, every thing faid of the territory of a nation, must alfo extend to its colonies. CHAP. XIX. Of our Native Country, and several Things that relate to it. What is our country. THE "HE whole of the countries poffeffed by a nation and fubject 211. to its laws, forms, as we have already faid, its territory, and is the common country of all the individuals of the nation. We have been obliged to anticipate the definition of the term, native country (§ 122), because our fubject led us to treat of the love of our country, a virtue fo excellent and fo necessary in a ftate. Suppofing then this definition already known, it remains that we fhould explain feveral things that have a relation to this fubject, and answer the questions that naturally arife from it. Citizens The citizens are the members of the civil fociety: bound to § 212. this fociety by certain duties, and fubject to its authority, they and na equally participate in its advantages. The natives, or natural- tives. born citizens, are those born in the country, of parents who are citizens. As the fociety cannot exist and perpetuate itself otherwife than by the children of the citizens, thofe children naturally follow the condition of their fathers, and fucceed to all their rights. The fociety is fuppofed to defire this, in consequence of what it owes to its own prefervation; and it is prefumed, as matter of course, that each citizen, on entering into fociety, referves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and thefe become true citizens merely by their tacit confent. We fhall foon fee, whether, on their coming to the years of difcretion, they may renounce their right, and what they owe to the fociety in which they were born. I fay, that, in order to be of the country, it is neceflary that a perfon be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country. *Hiftory of the English Colonies in North America. The $213. Inhabitants. tion. The inhabitants, as diftinguished from citizens, are foreigners, who are permitted to fettle and stay in the country. Bound to the fociety by their refidence, they are fubject to the laws of the ftate, while they refide in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual refidence. These are a kind of citizens of an inferior order, and are united to the fociety, without participating in all its advantages. Their children follow the condition of their fathers; and as the state has given to these the right of perpetual refidence, their right paffes to their posterity. 214. A nation, or the fovereign who reprefents it, may grant to a Naturalifa foreigner the quality of citizen, by admitting him into the body of the political fociety. This is called naturalisation. There are fome states in which the fovereign cannot grant to a foreigner all the rights of citizens,-for example, that of holding public offices, -and where, confequently, he has the power of granting only an imperfect naturalifation. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalise a single perfon, without the concurrence of the nation represented by its deputies. Finally, there are states, as, for inftance, England, where the fingle circumftance of being born in the country naturalifes the children of a foreigner. citizens, born in a foreign country. $215. It is afked, whether the children born of citizens in a foreign Children of country are citizens? The laws have decided this question in feveral countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot of itself furnish any reafon for taking from a child what nature has given him ; I fay of itself,' for civil or political laws may, for particular reafons, ordain otherwife. But I fuppofe that the father has not entirely quitted his country in order to fettle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another fociety, at least as a perpetual inhabitant; and his children will be members of it alfo. $216. Children born at fea. As to children born at fea, if they are born in thofe parts of it that are poffeffed by their nation, they are born in the country: if it is on the open fea, there is no reason to make a diftinction between them and thofe who are born in the country; for, naturally, it is our extraction, not the place of our birth, that gives us rights: and if the children are born in a vessel belonging to the nation, they may be reputed born in its territories; for it is natural to confider the veffels of a nation as parts of its territory, especially when they fail upon a free fea, fince the state retains its jurifdiction over thofe vefiels. And as, according to the commonly received cuftom, this jurifdiction is preferved |