Of a Nation confidered in its Relations to others.

CHAP. I.

Of the Common Duties of a Nation towards others, or of the Offices of Humanity between Nations.

$ 1. Foundation of the com

mon and

ties of na

tions.

HE following maxims will appear very ftrange to cabinet politicians and fuch is the misfortune of mankind, that, to many of those refined conductors of nations, the doctrine of this chapter will be a fubject of ridicule. Be it fo!-but we mutual duwill nevertheless boldly lay down what the law of nature prescribes to nations. Shall we be intimidated by ridicule, when we speak after Cicero? That great man held the reins of the moft powerful state that ever exifted; and in that station he appeared no lefs eminent than at the bar. The punctual obfervance of the law of nature he confidered as the most falutary policy to the state. In my preface, I have already quoted this fine paffage: Nihil eft quod adhuc de republica putem dictum, & quo poffim longius progredi, nifi fit confirmatum, non modo falfum effe illud, fine injuria non poffe, fed hoc veriffimum, fine fumma juftitia rempublicam regi non poffe. I might fay on good grounds, that, by the words, fumma juftitia, Cicero means that univerfal justice which confifts in completely fulfilling the law of nature. But in another place he explains himself more clearly on this head, and gives us fufficiently to understand that he does not confine

*Fragm, ex lib. ii. De Republica,

here relates to the increase of a lake, as in the other cafe to an increase of foil. If this increase be not infenfible,-if the lake, overflowing its banks, inundates a large tract of land, this new portion of the lake, this tract thus covered with water, ftill belongs to its former owner. Upon what principles can we found the acquifition of it in behalf of the owner of the lake? The fpace is very easily identified, though it has changed its nature: and it is too confiderable to admit a prefumption that the owner had no intention to preferve it to himself, notwithstanding the changes that might happen to it.

But, 2. If the lake infenfibly undermines a part of the oppofite territory, deftroys it, and renders it impoffible to be known, by fixing itself there, and adding it to its bed, that part of the territory is loft to its former owner; it no longer exifts; and the whole of the lake thus increased still belongs to the fame state as before.

3. If fome of the lands bordering on the lake are only overflowed at high water, this tranfient accident cannot produce any change in their dependence. The reafon why the foil, which the lake invades by little and little, belongs to the owner of the lake, and is loft to its former proprietor, is because the proprietor has no other boundary than the lake, nor any other marks than its banks, to afcertain how far his poffeffions extend. If the water advances infenfibly, he loses; if it retires in like manner, he gains: fuch muft have been the intention of the nations who have refpectively appropriated to themselves the lake and the adjacent lands:-it can fcarcely be fuppofed that they had any other intention. But a territory overflowed for a time, is not confounded with the reft of the lake: it can ftill be recognised; and the owner may still retain his right of property in it. Were it otherwise, a town overflowed by a lake would become fubject to a different government during the inundation, and return to its former fovereign as foon as the waters were dried up.

4. For the fame reafons, if the waters of the lake, penetrating by an opening into the neighbouring country, there form a bay, or new lake, joined to the firft by a canal,-this new body of water, and the canal, belong to the owner of the country in which they are formed. For the boundaries are easily ascertained: and we are not to presume an intention of relinquishing fo confiderable a tract of land in cafe of its happening to be invaded by the waters of an adjoining lake.

It must be obferved that we here treat the queftion as arifing between two ftates: it is to be decided by other principles when it relates to proprietors who are members of the fame ftate. In the latter case, it is not merely the bounds of the foil, but also its nature and ufe, that determine the poffeffion of it. An individual, who poffeffes a field on the borders of a lake, cannot enjoy it as a field when it is overflowed; and a perfon who has, for inftance, the right of fishing in the lake, may exert his right in this new extent: if the waters retire, the field is restored to

the

the use of its former owner. If the lake penetrates by an opening into the low lands in its neighbourhood, and there forms a permanent inundation, this new lake belongs to the public, becaufe all lakes belong to the public.

Land form

The fame principles fhew, that if the lake infenfibly forms an § 276. acceffion of land on its banks, either by retiring or in any other ed on the manner, this increase of land belongs to the country which it banks of a joins, when that country has no other boundary than the lake. lake. It is the fame thing as alluvion on the banks of a river.

But if the lake happened to be fuddenly dried up, either to§ 277. Bed of a tally or in a great part of it, the bed would remain in the poffef- lake dried fion of the fovereign of the lake; the nature of the foil, so easily up. known, fufficiently marking out the limits.

§ 278. The empire or jurisdiction over lakes and rivers is subject Jurifdicto the fame rules as the property of them, in all the cafes which tion over we have examined. Each ftate naturally poffeffes it over the lakes and whole or the part, of which it poffeffes the domain. We have feen (§ 245) that the nation, or its fovereign, commands in all places in its poffeffion.

CHAP. XXIII.

rivers.

Of the Sea.

IN

§ 279.

its ufc.

N order to complete the expofition of the principles of the law of nations with respect to the things a nation may poffefs, it The fea and remains to treat of the open fea. The use of the open sea confifts in navigation, and in fishing; along its coafts it is moreover of ufe for the procuring of feveral things found near the shore, fuch as fhell-fifh, amber, pearls, &c. for the making of falt, and, finally, for the establishment of places of retreat and fecurity for veffels.

the fea

nion appro

priated.

The open fea is not of fuch a nature as to admit the holding $280. poffeffion of it, fince no fettlement can be formed on it, fo as to Whether hinder others from paffing. But a nation powerful at fea may can be pofforbid others to fifh in it and to navigate it, declaring that the feed, and appropriates to herself the dominion over it, and that the will de- its domiftroy the veffels that fhall dare to appear in it without her permiffion. Let us fee whether fhe has right to do this. It is manifeft that the ufe of the open fea, which confifts in § 281. navigation and fishing, is innocent and inexhauftible; that is to fay-he who navigates or fifhes in the open fea, does no injury to any one, and the fea, in these two refpects, is fufficient for all priate to mankind. Now nature does not give to man a right of appro- himself the priating to himself things that may be innocently used, and that ufe of the are inexhaustible, and fufficient for all. For fince thofe things, while common to all, are fufficient to fupply the wants of each,whoever should, to the exclufion of all other participants, attempt to render himself fole proprietor of them, would unreasonably

wreft

Nobody has a right to appro

open fea.

$282.

that at

tempts to exclude another,

does it an

injury. $283. It even des an in

wreft the bounteous gifts of nature from the parties excluded. The earth no longer furnishing without culture the things neceffary or useful to the human race, who were extremely multiplied, it became neceffary to introduce the right of property, in order that each might apply himself with more fuccefs to the cultivation of what had fallen to his fhare, and multiply by his labour the neceffaries and conveniences of life. It is for this reason the law of nature approves the rights of dominion and property, which put an end to the primitive manner of living in common. But this reafon cannot apply to things which are in themselves inexhaustible; and confequently it cannot furnish any just grounds for feizing the exclufive poffeffion of them. If the free and common use of a thing of this nature was prejudicial or dangerous to a nation, the care of their own fafety would authorise them to reduce that thing under their own dominion if poffible, in order to restrict the use of it by fuch precautions as prudence might dictate to them. But this is not the cafe with the open fea, on which people may fail and fish without the leaft prejudice to any perfon whatsoever, and without putting any one in danger. No nation therefore has a right to take poffeffion of the open fea, or claim the fole use of it, to the exclufion of other nations. The kings of Portugal formerly arrogated to themselves the empire of the seas of Guinea and the Eaft-Indies*; but the other maritime powers gave themselves little trouble about fuch a pretenfion.

The right of navigating and fifhing in the open fea being The nation then a right common to all men, the nation that attempts to exclude another from that advantage, does her an injury, and furnishes her with fufficient grounds for commencing hostilities, fince nature authorises a nation to repel an injury, that is, to make use of force against whoever would deprive her of her rights. Nay more, a nation, which, without a legitimate claim, would arrogate to itself an exclufive right to the fea, and fupport its jury to all pretenfions by force, does an injury to all nations; it infringes their common right, and they are juftifiable in forming a general combination against it, in order to reprefs fuch an attempt. Nations have the greatest interest in caufing the law of nations, which is the bafis of their tranquillity, to be univerfally respected. If any one openly tramples it under foot, they all may and ought to rife up against him; and, by uniting their forces to chaftife the common enemy, they will discharge their duty towards themfelves, and towards human fociety, of which they are members (Prelim. § 22).

nations.

$284. It may ac

quire an exclufive

right by treaties,

However, as every one is at liberty to renounce his right, a nation may acquire exclufive rights of navigation and fishing, by treaties, in which other nations renounce, in its favour, the rights they derive from nature. The latter are obliged to obferve their treaties; and the nation they have favoured has a right to maintain by force the poffeffion of its advantages. Thus the

*See Grotius's Mare Liberum, and Selden's Mare Claufum, lib. i. cap. xvii.

houfe