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Of the Duties of Nations to Themselves and the Rights Arising Therefrom
§ 27. Definition of the duties of a nation to itself
By the duties of a nation to itself I understand the acts which any nation is bound to do or omit for itself by nature or by force of the law of nature.
§ 9.
Here we consider a nation as a single entity, which is determined by certain essential characteristics of its own being and which is able to live in accordance with them. Now those are the actions of a nation as such, which are directed toward the interest of the nation itself as such and are consistent or inconsistent with those characteristics, so that for this reason it makes a difference which it does and which it omits. Therefore, it must be shown what sort of acts the nation ought to do or not do, in order that it may not be wanting to its own self.
§ 28. On what the preservation of a nation depends
§ 5, part 8, Jus Nat.
§ 497, part 8, Jus Nat.
The preservation of a nation depends upon the continuance of its union into a state; or as long as the union into a state endures, the nation is preserved. For a people or a nation perishes when its union into a state is broken up, therefore so long as this persists, it does not perish, and is therefore preserved. Therefore, the preservation of a nation as such depends upon the continuance of its union into a state.
§§ 349, 350, part 1, Jus Nat.
§§ 4, 5, part 8, Jus Nat.
§ 420, part 8, Jus Nat.
§ 4.
The preservation of the physical individual is one thing, that of the moral person another. The latter presupposes the former, but does not remain alive because the former is intact. Thus, although every man is bound to preserve his own body and his own life, without which the physical individual cannot exist; nevertheless it may not be
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inferred from this that a nation too as such is bound to preserve itself. For nature does not make a nation, but agreement. The preservation of the individuals who constitute the nation, as made up of physical individuals, belongs to universal public law; but the preservation of a nation as a nation belongs to the law of nations and must be here demonstrated. And hence it appears that there are duties of a nation to itself, which have to be considered separately from universal public law; and although the necessary law of nations consists in the law of nature applied to nations, nevertheless this application ought not to be made without caution, lest by confusing different things we may seem to have proved what was to be proved, and yet not have proved it at all. The same will be evident in other things which come later.
§ 29. On what the perfection of a nation depends
§ 5, part 8, Jus Nat.
§ 4, part 8, Jus Nat.
§§ 503, 528, 529, Ontol.
The perfection of a nation depends upon its fitness for accomplishing the purpose of the state, and that is a perfect form of government in a nation, if nothing is lacking in it which it needs for attaining that purpose. For every nation is a number of men united into a state, consequently, to accomplish that purpose on account of which the state was established. Therefore, since all perfection is to be estimated from the tendency of those things which are in harmony with an entity to realize the same in some respect; the perfection of a nation certainly depends upon its fitness for accomplishing the purpose of the state. Which was the first point.
§ 706, Ontol.
§ 783, Ontol.
§ 528, Ontol.
For since the external condition of a nation is determined by those things which aid the nation as such; moreover since the accidental perfection, such as exists in a nation which depends upon its external condition, requires the harmony of those things which belong to it, together with those which make the essential perfection of a nation, consequently, the striving for the purpose of the state, as noted above in point 1; the perfection of its condition is to be determined from this, that nothing is lacking in it which the nation needs for attaining the purpose of the state. Which was the second point.
§ 505, Ontol.
The second point is also demonstrated as follows. If a nation is to be perfect, it is necessary that it shall be suited to accomplish the purpose of the state (as shown in point 1). Therefore it is further required that in
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its condition nothing should be lacking which it needs for accomplishing this. Therefore the perfection of its condition ought to have the same general reason as the perfection of the nation itself, through which reason it is understood why those things which belong to it are such and so great rather than otherwise, consequently suitable that by their aid the purpose of the state may be attained. Therefore the condition of a nation is then at last perfect, if nothing is lacking in it which it needs for attaining its purpose.
We can look upon a nation as a sort of composite entity, the different parts or organs of which are as it were groups of people living the same kind of life, which individual groups we look upon as a part or as one single organ. And so since this composite entity is perfect, if its several organs are adapted to the performance of their functions, and through this the entity becomes adapted to the attaining of its purpose, so likewise a nation is understood to be perfect if the particular combinations of individuals living different kinds of lives are adapted to the performance of their functions rightly, and through this the nation is adapted to the attaining of the purpose of the state. But a nation can scarcely be thought of as adapted to attaining the purpose of a state, if it lacks those things which it needs for attaining that end, when you wish to take into consideration not only the intrinsic, but also the extrinsic possibility, so that the purpose of the state can be actually accomplished. Therefore the perfection of its condition rests on the same basis as the perfection of the nation itself, and therefore it is necessary that nothing should be lacking in it which the nation needs for accomplishing the purpose of the state.
§ 30. Whence those things are evident which are required for the perfection of a nation and its condition
§ 29.
§ 393, part 8, Jus Nat.
§§ 394 and fol., part 8, Jus Nat.
Since the perfection of a nation depends upon its fitness for attaining the purpose of the state, and since that is a perfect condition, if nothing is lacking in it which the nation needs for attaining that purpose, since, moreover, the constitution of a commonwealth depends upon the determination of the method by which the purpose of the state is attained; from those things which have been proved concerning the establishing of
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a state, it is evident what things are required, both for the perfecting of a nation and for the perfecting of its condition.
But if you will properly consider those points which we have fully proved concerning the constitution of a state, you will see with perfect clarity that the whole nation may best be thought of in the likeness of a man, whose soul is the director of the state, but whose body is the subjects as a whole. It will likewise be plain with what mind and will, and with what subordinate powers the soul ought to be provided, and what kind of organs the body ought to have. Now the organs of this body are groups of men living various kinds of lives, as associations of scholars, workmen, artisans, numbers of farmers and workmen, troops of soldiers, and so on. If any one desires correctly to distinguish one from the other and properly enumerate the several kinds of lives which a properly organized state needs, he will give to us an adequate concept of the structure of this body, observing the analogy of the human body. And when he has considered further what things the superior ought to care for and what are his duties, he will give us a no less adequate concept of the soul also. It will also be plain what sort of a union there ought to be between soul and body, and how harmony may be established between soul and body, by determining the form of state, and that the bond of union is obedience of the subjects and mutual love of superior and subjects. If any one has sufficient intelligence, and has an adequate conception of the human soul and body, and also of a properly constituted state, he will not get a better conception of the perfection of a nation and its condition than by aid of this analogy. Nor in truth is it to be considered that this analogy is only a kind of play of the imagination. For it is a heuristic principle, which aids wonderfully in discovering those things which pertain to universal public law and the law of nations, and in confirming what is already plain in some other way, not to mention that by its aid men who cannot grasp a long course of proof may be persuaded of the truth of those things to which otherwise they would not easily assent. But it is not for us to pursue this argument at greater length.
§ 31. Of a nation’s duty of self-preservation
§ 5, part 8, Jus Nat.
§ 28, part 8, Jus Nat.
§ 28.
Every nation is bound to preserve itself. For the people who make a nation, when they have united into a state, are as individuals bound to
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the whole for promoting the common good, and the whole is bound to the individuals to provide for them those things which are required as a competency for life, for peace and security. Furthermore it is self-evident that this obligation cannot be satisfied, either on the part of the individuals or of the whole, unless the union in a state should persist, consequently, since the preservation of the nation depends on this union, unless the nation should be preserved. Therefore every nation is bound to preserve itself.
§ 28, part 8, Jus Nat.
Note, § 3.
§ 26, part 8, Jus Nat.
§ 789, part 3, Jus Nat.
§ 840, part 3, Jus Nat.
§ 28.
§ 19, part 1, Jus Nat.
§ 26, part 8, Jus Nat.
§ 349, part 1, and § 144, part 7, Jus Nat.
All obligation, by which the individuals in a state are bound to the whole and the whole to the individuals, comes from the agreement by which the state was established, as is evident from the proof given elsewhere. But since the obligation of self-preservation may proceed from this, by force of the present proof; this obligation itself also comes from the agreement, as we have already suggested above. But the obligation from the agreement ratified by the law of nature, receives its force from the same source. Therefore every nation is bound to save itself by the law of nature itself. It is no objection that agreements can be dissolved by mutual consent, consequently it is permitted by nature also to dissolve the union by unanimous consent, and when this occurs the nation does not exist. For the obligation of self-preservation in a nation belongs to the category of those which are called hypothetical, and rests on some human action as a basis. But this of itself is not immutable, as being absolute, which comes from the essence and nature of man, but in the present case it persists as long as the desire to endure abides in the state. But with difficulty, and scarcely at all, can it be conceived that the desire would fail all the inhabitants of any district. Nay, unless there should be sufficient reason for its failure, as is very unlikely, since states have been established in accordance with natural law, those err especially who wish to end the union into a state by common consent, therefore nations have besides the duty of preserving themselves. Individuals are bound to preserve themselves, and they owe mutual assistance to each other in perfecting themselves and their condition. But to destroy the union into a state, which is a means of satisfying that natural obligation, is opposed to this. Nay, unless you assume that the individuals who compose a nation are insane, or so stupid that they do not recognize that it is to their especial interest
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that the bond of civil society should not be removed, the spontaneous dissolution of the state is rightly considered as absurd or morally impossible.
§ 32. Of the law of nations in regard to those things which are necessary for their preservation
§ 31.
§ 159, part 1, Phil. Pract. Univ.
Since every nation is bound to preserve itself, since, moreover, the law of nature gives to men the right to those things without which they could not perform their obligation, every nation has the right to those things without which it cannot preserve itself.
§ 28.
It must be properly observed that we speak here concerning the preservation of a nation as such, which exists during its union in a state and consequently during the preservation of the state, in so far as it is regarded in general, and not in a particular form. Therefore we speak here of nothing except the right to those things which are necessary that the state may remain and the nation not perish. For those things which are necessary to the preservation of the individuals who make the state, belong to universal public law, and are evident from the things which we have abundantly proved concerning the constitution of a state, in the last part of “The Law of Nature.”
§ 33. Of averting the danger of destruction
§ 31.
§ 209, part 1, Phil. Pract. Univ.
In like manner because each nation is bound to preserve itself; it ought also to avert from itself all danger of destruction, therefore it ought to avoid those things which can bring about its destruction, as much of course as is in its power, since no one is bound to the impossible.
§ 540, part 1, Theol. Nat.
§ 593, part 1, Jus Nat.
§ 1192, part 1, Jus Nat.
§ 371, part 17, Jus Nat.
The preservation of a nation and its destruction are mutually opposed to each other. Therefore, since it ought to preserve itself, it ought also to be on its guard lest it may perish of its own fault. For that which is to be imputed to bad fortune, and is not subject to our control, must be patiently endured and entrusted to divine providence. Association in a state is as it were the life of a nation. Therefore, just as a man ought to avoid every risk to his life so far as in his power, so also is a nation bound to avoid risk of destruction. But just as it is
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impossible for a man to resist a superior force, by which he is brought into peril of his life, or without his consent is deprived of life; so likewise it is not possible that a nation protect itself from destruction by a superior force threatening it, for example, from perishing by earthquake or extraordinary flood or from destruction by the wrongful act of a stronger nation or from dissolution of the union by force of internal war or by famine or pestilence, instances of which are found in the annals of the ancients, which it is not our plan to collect in this place. It is enough to have suggested those things which make for a better understanding of the present proposition.
§ 34. Of the right to those things which are necessary for guarding against the risk of destruction
§ 33.
§ 159, part 1, Phil. Pract. Univ.
Since a nation ought to ward off from itself all peril of destruction and avoid those things which can bring destruction to it, so far as it is within its power, and since the law of nature gives a right to those things without which we cannot perform our obligation, every nation has the right to those means by which it can, as far as possible, avert the peril of destruction and avoid those things which can bring destruction upon it.
§ 859, part 1, Jus Nat.
§ 348, Log.
It is needful that the laws of nations be understood, that it may be plain in how many ways wrongs can be done to a nation; from which many other things may be derived which pertain to the law of nations. Moreover from the general principles which we have already proved, special conclusions will then be drawn, for whose sake these premises are here laid down. For general principles are very fruitful and in the sciences they are so to speak the seeds of truths.
§ 35. Of a nation’s duty to perfect itself and its condition
§ 5, part 8, Jus Nat.
§ 4, part 8, Jus Nat.
§ 29.
Every nation ought to perfect itself and its condition. For since a nation is a number of men united into a state, and since men go into a state in order to accomplish a definite purpose by their combined powers; in order that this purpose may be accomplished it is undoubtedly necessary that the nation should be fitted to accomplish this purpose, nor should it lack those things which it needs to accomplish it. Therefore since the perfection of a nation consists in its fitness for accomplishing
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the purpose of the state, and since its condition is perfect, if there is nothing lacking in it which it needs for attaining its end, every nation ought to perfect itself and its condition.
§ 440, part 1, Phil. Pract. Univ.
How it may perform this duty is plain from those things which we have shown at length concerning the establishment of the state in the entire third chapter of the eighth part of “The Law of Nature.” Hence it is plain that a nation errs, if in those things which have been mentioned in the same place, it is in any way remiss in diligence.
§ 36. Of the duty of being on one’s guard and avoiding anything opposed to perfection
§ 35.
§ 722, part 1, Jus Nat.
Since every nation ought to perfect itself and its condition, and the one bound to do this is at the same time bound not to do the opposite, every nation ought to be on its guard against and avoid those things which in any way interfere with its perfection and that of its condition, or which render it or its condition less perfect.
Lucilius properly desired to make a distinction between guarding against and avoiding. To avoid is more than to guard against. He of course guards against, who takes care that a thing may not happen to him which he foresees can happen, although it is uncertain whether it will happen or not; while he avoids, who turns aside that for the producing of which some cause already actually exists. So he guards against a conflagration, who does not allow servants with lighted candles to go into a stable or granary filled with straw; he avoids a conflagration, who snatches himself betimes from a burning building. Therefore in the present proposition it is urged that we should not only look out for those things which can happen and take measures lest perchance they may happen, but also that in an emergency we should look out for ourselves and ward off evil from ourselves. Moreover it is quite plain that, in order to avoid, we must be on our guard, since no man can unerringly foreknow the future. We guard against what is uncertain, we avoid the certain. But since, as I have said, we cannot unerringly foreknow the future, we rightly fear in proportion to the degree of the probability of its occurrence that which is acknowledged as not impossible to occur. Nature herself leads us hither, who instills fear in
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the senses, and reason commands, in so far as the intellect reduces the confused notions which affect the senses, to distinct concepts, through which the will and the non-will are determined. But these points will become more manifest, if we are allowed to teach moral philosophy by the method which we use in metaphysics.
§ 37. Of the right belonging to a nation to perfect itself and its condition
§ 35.
§ 36.
§ 159, part 1, Phil. Pract. Univ.
Likewise since every nation is bound to perfect itself and its condition and must guard against and avoid those things which interfere in any way with its own perfection and that of its condition or render itself or its condition less perfect, and since moreover the law of nature gives a right to those things without which we cannot perform our obligation, every nation has the right to those things without which it cannot perfect itself and its form of government, nor guard against and avoid those things which interfere with its own perfection and its form of government, or render itself or its form of government less perfect.
Note, § 35.
Since from those things which we have shown concerning the establishment of the state, it is plain how a nation can perfect itself and its condition, and consequently also what things are to be guarded against and avoided to that end; from those also it is known in what respects a certain right belongs to it, so that it may be capable of perfecting itself and its condition, and capable of guarding against and avoiding those things which hinder its perfection or produce imperfection.
§ 38. Of the duty of the ruler of a state in the preservation and perfection of the nation and its condition
§ 42, part 8, Jus Nat.
§§ 4, 9, part 8, Jus Nat.
§ 60, part 8, Jus Nat.
§ 29.
The ruler of a state has the care of perfecting and preserving his nation or people and likewise its condition, and also of guarding against and avoiding, so far as possible, all imperfection and destruction. For it belongs to the ruler of a state to exercise the civil authority, consequently to determine those things which are required to advance the public good, and therefore to accomplish the purpose of the state. Therefore it is necessary
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that he should see to it that the nation be fitted to attain the purpose of the state and that nothing be lacking which is needed for attaining that. Therefore since the perfection of the nation and its condition consists in this, moreover, since there is no perfection, unless the nation be preserved, as is evident of itself, the ruler of a state has the care of perfecting and preserving his nation and its condition, and also of guarding against and avoiding, so far as possible, imperfection and destruction.
§ 34, part 8, Jus Nat.
§ 31, part 8, Jus Nat.
§ 30, part 8, Jus Nat.
The care, of course, of saving and perfecting the nation and its condition belongs originally to the nation as a whole, to which originally belongs the civil sovereignty, or the right of the whole over the individuals, to be determined by the purpose of the state. When therefore this is transferred to another or others, on this same one or ones is imposed the care of saving and perfecting the nation and its condition. This same thing has already been made perfectly plain from those things which we have proved concerning the establishment of the state in the eighth part of our work on natural law.
§ 39. Of the character as representative of a nation belonging to the ruler of a state
§ 38.
§§ 32, 37.
§ 70, part 1, Jus Nat.
Since the care of preserving the nation and perfecting it and its condition belongs to the ruler of a state, whatever right belongs to the nation of preserving itself and of perfecting itself and its condition, the same resides with the ruler of a state, consequently the ruler of a state has the right which belongs to each nation, and therefore he represents his nation when it has dealings with others.
§ 70, part 1, Jus Nat.
§ 131, part 8, Jus Nat.
§ 160, part 8, Jus Nat.
The character as representative of the nation, belonging to the ruler of a state, presents no difficulty, if only you consider what a moral person is. The nation, in so far as there belong to it definite rights for the purpose of saving itself and perfecting itself and its condition, is a moral person, and so far as the nation rules itself, a thing which occurs in a democratic state, it is itself the ruler also of the state into which it has united. If, therefore, it has given over to another or others the care of preserving itself and perfecting itself and its condition, and consequently, if it has transferred to him or them the rights also belonging
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to itself for that purpose, so that now the ruler of the state becomes a subject different from the nation, that moral person, which before existed in the nation as a whole, exists now in another physical individual. And so the ruler of a state represents the entire nation, so far as he is considered ruler of the state. But do not persuade yourself that the character as representative of the nation derogates in any respect from the dignity of the ruler of a state like the majesty of a monarch in a monarchical state. For this rather makes it the more conspicuous, because now one has that dignity which a large group of people has only when considered as a whole; from this, too, it follows, that this dignity is greater in a kingdom, in which one man has it, than in an aristocracy, in which it belongs to several together. And since none of this dignity will remain in the people, and none of it can belong to the individuals, since what belongs to the whole cannot be common to individuals, therefore the ruler of a state towers above the nation, nor can the dignity of any one of the nation be compared with his dignity. See what we have already proved and noted elsewhere.
§ 40. Of the knowledge of itself
§ 35.
§ 36.
Every nation ought to know itself and its condition. For it ought to perfect itself and its condition, and it ought to guard against and avoid those things which can hinder its perfection and that of its condition, or render itself or its condition less perfect. It is therefore necessary that it should know what sort of capabilities of mind and powers of body, and what things are needed for perfecting itself and its condition, what perfection it has already attained and with what imperfection it still suffers, both as regards itself and as regards its form of government. Therefore every nation ought to know itself and its condition.
This knowledge is especially necessary to a nation, unless it should wish to commit all to fortune and not to have knowledge except by its own hurt, or to trust simply to a blind imitation of other nations. Knowledge of its own self is enjoined for no other purpose than that a nation should, as far as is in its power, perform its duties to itself and strive to perform them fully. But if the care of perfecting itself and its condition is subjected simply to the power of fortune, a nation by no
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means perfects itself and its condition as far as it can. Hence we see that very many nations, which could have ascended to a high degree of perfection, have always remained in a low degree.
§ 41. The knowledge of a nation required of a ruler of a state
§ 40.
§ 38.
The ruler of a state ought to know his nation and its condition. It is plain from the proof of the preceding proposition that the care of perfecting itself and its condition demands a knowledge of itself and its condition in a nation. Therefore, since the care of perfecting a nation and its condition belongs to the ruler of a state, the ruler of a state ought to know his nation and its condition.
Note, § 39.
When sovereignty is transferred to another, the ruler of a state assumes the personality of the nation as a whole, and so all obligation passes to him of perfecting the nation and its form of government, consequently also the obligation of understanding perfectly the nation which he represents and whose personality he bears, and its condition. The care to be expended upon acquiring this knowledge is perpetual, although generally among many nations this is neglected. For without this knowledge it is impossible to administer the state properly.
§ 42. Of the necessity of knowledge concerning the condition of the territory and of all places in it
§ 41.
Since the ruler of a state ought to know the condition of his nation, since, moreover, this depends in great part on the condition of the territory, as is plainly evident, the ruler of a state therefore ought to know the condition of the territory which his nation inhabits, and when this is not the same everywhere, he ought to know the condition of all places in it.
It is impossible that the form of government of any nation should be brought to that degree of perfection of which it is capable, unless the condition of all the territory which it inhabits is accurately known and understood; as this cannot be done, so that the nation itself may be perfected, as far as possible, unless you examine carefully the natural gifts, the customs and the manner of life of all the inhabitants of all places. Moreover, each form of knowledge is so closely connected
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with the other that one cannot be separated from the other, whether you wish to perfect the condition of a nation, or the nation itself, or guard against imperfection, or remove blemishes from it. Whence it is plainly evident that for this knowledge is required an accurate geographical map of the whole territory and of the several parts, under whatsoever name they may finally come, an entire natural history of the whole territory, perfectly accurate measurement of all the fields, meadows, woods, cities, towns, villages, and so on, finally a trustworthy description of the inhabitants of all places and of those things which concern them in any manner. When this knowledge of the territory and inhabitants is prepared for the use of the ruler of the state and consequently of those whose advice and service he uses in administering the state, statecraft will readily tell what can be communicated safely to the public, and what ought to be concealed, lest it betray the country to others.
§ 43. Of those characteristics which are to be predicated of the nation by transfer from individuals
§ 5, part 8, Jus Nat.
§ 2.
§§ 28, 30, Ontol.
Those characteristics which are to be predicated of the greater part of a nation or the majority in some particular walk of life, pass from the individuals to the nation as a whole and consequently are to be predicated of it. For since every nation is a multitude of people, since moreover neither nature and fortune nor education, training and intercourse, even if they be very much the same, make individuals the same; it is altogether impossible for the things, which, as it were, are peculiar to individuals, to be predicated of them as a whole. Nevertheless, since every nation is to be considered as a single personality, the characteristics of individuals pass from them to the nation. But since contradictions cannot exist in one entity and it would in truth be absurd for the name to be taken from the smaller rather than the larger part, those things which are to be predicated of the greater part of the nation pass from the individuals to the nation as a whole and consequently are predicated of it. Which was the first point.
Now further, it is quite plain a posteriori that, if men are to pass their lives advantageously and pleasantly and live happily, all cannot follow the same kind of life, but, in order that all things may be done which ought
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to be done in a well-established commonwealth, as we have fully shown in the entire third chapter of the eighth part of “The Law of Nature,”1 some ought to do one thing, others another, just as in the human body there are different functions for different organs, fitted to accomplish one definite general purpose; the characteristics of the several groups of men living the same kind of life pass into the nation as a whole. But since, as before shown, it cannot happen that individuals who live the same kind of life should be the same, as likewise was before made plain, the characteristics which are to be predicated of the majority in some definite kind of life pass from them to the nation, and consequently are to be predicated of it. Which was the second point.
That the force and influence of the present proposition may be grasped, it must of course be illustrated by examples. We say, for example, that a nation is vigorous and industrious, if the majority found in it are vigorous men and the men generally are industrious. A nation is said to be vicious, if a very great number pollute themselves by every kind of vice; it is said to be intemperate, if it is a common custom to delight in excessive drinking; it is said to be licentious, if its common vice has been lust. Those who write of the customs of nations can use no other principle of distinction than that those characteristics pass from the individuals to the nation, which belong to the great majority. Likewise a nation is called rich, in which many are found who abound in wealth; that one is called educated and learned, which has many educated and learned men; the English are called excellent artisans, because manufactured articles are carefully fashioned in England; the Italians remarkable architects, because among them architecture has been cultivated and is to-day cultivated; the Dutch pre-eminent merchants, because merchandising flourishes among them in a singular manner. But it is to be observed that when a majority of those who are pre-eminent in any walk in life are to be considered, the number of those who are in one nation is customarily compared with the number of those who follow the same walk in life in other nations. But although that comparison may be especially attributed in general to
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prejudice, nevertheless this does not prevent these general principles from having a basis also in truth. For prejudices act in no other way than that principles true in themselves may be wrongly applied, just as also is often done by those, who from one or two instances, draw a conclusion as to more, because they assume wrongly that, if not all, at least very many, ought to be such as they recognize the one or two to be. But he who avoids prejudice knows that it is to be proved and not assumed that those are in the majority, from whom some characteristic is to be transferred to the nation, before it can be attributed to the nation; nor in proving that does he assume what formerly was, but what now is, when a decision as to the present is to be given, and concerning that characteristic which he assigns to the majority, or to the very great number, he decides after very careful investigation. For unless those things are observed, his decision concerning the nation will be just as false as if, those points being ignored, he should decide concerning other things.
§ 44. Of the duty of individuals arising therefrom
§ 43.
§ 152, part 1, Phil. Pract. Univ., and §§ 522, 523, part 1, Jus Nat.
Since those characteristics which are to be predicated of the greater part of a nation, or the majority in some definite kind of life, pass from the individuals to the nation as a whole and consequently are to be predicated of it; whoever belongs to a nation owes this not only to himself, but also to his nation, that, to his utmost ability, he perfect himself and his condition and so perform his work, that he may through that endeavour perfectly attain his purpose, and consequently may excel, so far as it can be done, in that kind of life which he follows.
§ 887, Psych. Emp.
§ 118, part 1, Phil. Pract. Univ.
So we owe it not only to ourselves to acquire intellectual and moral virtues, but also to the nation to which we belong, lest we be to blame for its being styled less virtuous, or lest this or that intellectual or moral virtue come to be denied to it. Likewise the scholar is bound to his nation, that it may excel especially in learning, and that he may not detract from its reputation as a learned nation, and the artisan is bound to it, that it may be adorned by the art which he practices, and that he may not by his error diminish its reputation. It is in harmony with these general ideas that the characteristics of individuals pass from them to the nation, so that the individuals also who belong to
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the nation seem to share the reputation of the others who are of the same nation. Therefore contrary to common sense are the customs of that set of scholars in Germany who discredit the men especially deserving in the republic of letters and afterwards flatter and exalt to heaven with the highest praise those things in the works of foreigners which they have ridiculed in their own, as if by flattery they could share in the reputation of a foreign nation. But from this a new motive arises to perform with all our might all duties imposed by natural law, on which is based a new natural obligation, that we should not allow ourselves to be lacking in any effort or exertion to perfect ourselves.
§ 45. Of the necessity of not bringing disgrace on one’s nation
§ 44.
§ 722, part 1, Jus Nat.
§ 395, part 8, Jus Nat.
Since each and every one owes it to his nation that, to his utmost ability, he should perfect himself and his condition and excel in the kind of life which he follows, as far as he can, and since he who is bound to do this, is bound at the same time not to do the opposite, each one ought to be on his guard, lest by doing those things which are wrong or less right, he may bring disgrace upon his nation; consequently since the ruler of a state ought to take care that citizens should not do the things which are opposed to the obligations prescribed by natural law, he therefore ought not to allow citizens to bring disgrace upon their nation.
§§ 653, 654, part 8, Jus Nat.
Many particular conclusions follow from this, since this obligation is as widely extended as are the duties of a man and citizen. And hence also follows the right to punish the acts of subjects by whom disgrace is brought upon the nation, of which we have spoken elsewhere.
§ 46. Of zeal for the reputation of one’s nation
§ 43.
§ 554, part 1, Jus Nat.
Because those characteristics pass from the individuals to the nation as a whole and are predicated of it, which come to be predicated of the greater part of a nation, or the majority in some definite kind of life, and consequently the good reputation also of the greater part, or of the majority in some definite kind of life passes over to the nation as a whole, those who are of the nation owe this not only to themselves, but also to their own nation, that its reputation should be good; consequently they
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ought to defend the reputation of their nation and country so far as in them lies.
The learned undoubtedly sin against their nation who revile with insult the men especially deserving in the republic of letters, preservers of the reputation of their nation, and who detract from their reputation or even strive with all their might to make public those things which ought rather to have been concealed, lest disgrace be imposed upon their nation. But those things which are said of the nation as a whole ought likewise to be understood of definite classes or groups of men. Now the duty of which we have already spoken, ought to be the more carefully observed when the welfare of the nation or of a definite class or group depends upon its reputation. Moreover, they err the more basely who do anything contrary to this duty, if it shall have been entrusted to their charge to protect the reputation of the class or group. I do not add examples lest they may be invidious.
§ 47. What fame is
§ 551, part 1, Jus Nat.
§ 552, part 1, Jus Nat.
Fame is the unanimous praise of the good and wise, or of those who judge properly. We call it in our native vernacular ein grosser Nahme [a great name]. Therefore since deeds arising from intellectual and moral virtues produce praise, and show that a man is worthy of that praise; without intellectual and moral virtues no one can attain real fame, and he excels especially in fame who is the most pre-eminent in virtue.
§ 553, part 1, Jus Nat.
Fame does not differ from praise, except that praise is assigned by one, but many agree as to fame. Moreover the consensus of the many according to the laws of probability proves that praise is deserved. Still, it is needful that those who judge should judge well, consequently that they be wise, lest they fail in judgement, and that they be good, lest contrary to conscience they may honour some one with undeserved praise. For many, and often also the wise, praise in order that they may be praised, and are influenced either by the hope of some personal advantage or by the desire to promote the welfare of the one whom they praise. Hence, not rarely does it happen that some deserve fame, others have it. Now it is better to deserve than to have and not deserve. And since the reputation of a man is the common report of
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other men concerning his intellectual and moral habits, by force of the definition, fame without reputation is inconceivable. For those who are not able to judge for themselves follow the judgement of the wise, a course which at length becomes general. But because it happens that those are considered wise who are not, true and genuine fame differs from the false and empty.
§ 48. Of the fame of a nation
§ 47.
§ 551, part 1, Jus Nat.
§ 43.
Since fame is the unanimous praise of the good and wise, consequently since it depends upon the significance of the judgement concerning the perfection of some one, or the enumeration of his intellectual and moral virtues and the deeds arising therefrom, and since the reputation of those who belong to a nation passes to the nation itself, the fame of a nation consists in the praise which by the consensus of the good and wise is assigned to it, both on account of its own perfection and deeds, and on account of the deeds arising from the intellectual and moral virtues of those who belong to the nation.
Of course fame is primarily and of itself attributed to the nation, because it is considered as a single person, which has its own actions dependent upon intellectual and moral virtues; but even more is it attributed to it, because the renown of individuals is passed over to it on account of acts or deeds which are considered as those of the individuals. So, for example, the good reputation of government is a part of its fame, likewise the customary keeping of faith in agreements with other nations; but it is no less a part of its fame if it should have learned men pre-eminent in the republic of letters, skilled artisans, industrious merchants and other things of this sort. The former of themselves point to the nation, and are not thought of without it, but the latter pass only from the individuals to the nation, and moreover of themselves belong to individuals and are thought of concerning them without regard to the nation. The condition is just the same as in man, or even in the human body, in which there are certain things which are referred to the entire man as such, or are predicated of him as such; and certain things, which come to him from definite organs or faculties of the soul, are predicated of them as such. So health is predicated of the whole body as such; but a man is said to have strong
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vision on account of the structure of the eye, from which keenness of vision comes to him. Since certain things are to be predicated of the nation, there is need of discrimination, lest those things which are of and belong to the individuals should be confused with those things which peculiarly belong to the nation as such, or rightfully come from the individuals to it. And although the discrimination may be aided, if you compare the nation with the human body, or with man as a whole, nevertheless there is need of caution here too, because a certain entire class of men, or a group leading the same kind of life, is compared with one organ of the body, inasmuch, of course, as the greater part represents the whole, because the things to be attributed to the group cannot under human conditions be discerned otherwise than from those belonging to the great majority.
§ 49. Of the desire for fame
§ 48.
§ 35.
Since the true and enduring fame of a nation depends upon its own perfection, since moreover a nation ought to perfect itself, it ought to strive to deserve fame.
§ 47.
§ 543, part 1, Jus Nat.
§ 542, part 1, Jus Nat.
Fame consists in praise. But although no one can bring it about that he be praised by others, it is at least within our power to deserve fame. Moreover we speak of true and enduring fame, which cannot be acquired except from the intelligent. There are indeed those who praise themselves under an assumed name, or even conspire for mutual compliments, so that they attain fame by deceiving others, who do not judge for themselves. Still this is not true and enduring fame, but false and empty, nor in the case of a nation does this come with the same ease. And, even if the pursuit of this especially empty sort of fame caused no difficulty, nevertheless we, who are devoted to truth, not to falsehood, and who do not teach how to deceive others by wicked devices, should not strive for it in the least.
§ 50. How far this applies to individuals
§ 48.
§ 44.
Likewise since the fame even of a nation depends upon the deeds of individuals which arise from intellectual and moral virtues, since moreover individuals owe this to their nation, that so far as possible they perfect themselves and excel in that kind of life which they follow, the
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individuals, too, who belong to a nation, ought to strive to deserve fame and direct their actions to the glory of the nation.
§ 570, part 1, Jus Nat.
§ 566, part 1, Jus Nat.
§ 583, part 1, Jus Nat.
§ 563, part 1, Jus Nat.
Of course individuals ought to perfect themselves and do noble deeds with the purpose that through those things which pass from them to the nation, it may gain fame. If that is done with that idea, one seeks not his own interest, but that of his nation, which he is desirous of serving well; consequently he does nothing which can be counted as evil, since he does not strive for his own fame as the ultimate object of his actions, which is characteristic of the ambitious man, much less does he aim at honours of which he is unworthy, which is characteristic of the arrogant, nor does he wish more perfection attributed to himself than in very truth he has, which is characteristic of the haughty, nor forsooth does he indulge too much his desire for honour, which is opposed to modesty.
§ 51. How far this applies to the ruler of the state
§ 48.
§ 38.
§ 722, part 1, Jus Nat.
Because the fame of a state depends upon its own perfection, moreover because the care of perfecting his nation and its form of government rests on the ruler of the state; the ruler of a state especially ought to strive that the nation over which he rules may deserve fame, and he ought to direct the royal acts to the glory of his nation, consequently to do nothing which can diminish or destroy it.
Note, § 50.
The desire for the fame of his nation is a part of the duty of the ruler of a state, who deserves well of it, if in that he allows his diligence to be in no respect lacking; but he deserves ill of it, if in that regard he shows himself remiss. But when he strives for the fame of his nation, he does nothing which can be blamed, and his acts remain untouched by any imputation of evil. The things which we have just noted upon the preceding proposition are to be applied likewise to the ruler of a state. Moreover, it is quite plain that the ruler of a state can contribute more to the glory of the nation than a private citizen can.
§ 52. Of barbarous nations
§ 547, part 1, Jus Nat.
§§ 895, 896, part 2, Phil. Pract. Univ.
§ 687, part 2, Phil. Pract. Univ.
We call a nation barbarous, or in our native vernacular, ein barbarisches Volck [a barbarian people], which cares but little for intellectual virtues,
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consequently neglects the perfecting of the intellect. Therefore, since barbarian nations do not develop their minds by training, in determining their actions they follow the leadership of their natural inclinations and aversions, and their uncivilized usages depend for the most part on these.
§ 162, Log.
Even from the beginning those were called barbarians by the Greeks who used a less cultivated language, that is, other than Greek, and then by the Romans those were so called who did not speak Greek or Latin; but afterward the term was transferred from the speech and language to the method of living also and to the character of the usages. The perfection of speech and language depends upon the perfection of the intellect, consequently above all upon intellectual virtues, although it may happen that those may retain a rough and harsh pronunciation of words and an uncultivated speech, who prize the intellectual virtues and have cultivated manners. Therefore in our definition we do not depart from the received significance of the term, although we have retained in it the terminology usual in philosophy, so that the concept of a barbarous nation is resolved into the previous concepts, as ought to be the case in a system, lest it may lack the full light which it can and ought to have; for in definition one must use the terms previously explained or made clear from general usage in speaking. But those who think that a barbarism is introduced, when any cultivate and teach studies in any other language than the Latin, because the Romans called those barbarians who did not speak Latin or Greek, are very greatly mistaken; for did not both the Greeks and Romans transmit their learning and arts in their native tongue? It is one question whether the knowledge of the Greek and Latin languages is useful to the scholar, quite another whether or not it is wise that scholars should use some common language, and whether that ought to be Latin. This is not the place for us to say what seems best concerning either point. But this concept of the barbarous nation, which we have given, is quite fruitful, provided only one shall have mentally grasped those previous concepts which lead up to it, and provided one is strong in the art of proof; for from this are to be derived the things which are to be predicated of barbarous nations, that we may not judge erroneously
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concerning their characteristics, as for example, by confusing natural manners with virtues, or by attributing to virtue the absence of vices, which is due to ignorance, or by counting civilized manners as uncivilized, because they may be different from those commonly received among other non-barbarous nations. Nevertheless, it is not our plan to follow up those ideas here; it is enough to have awakened the attention of others.
§ 53. Of the cultured and civilized nation
§ 547, part 1, Jus Nat.
§ 52.
That is called a cultured nation which cultivates intellectual virtues, consequently desires to perfect the intellect, and therefore develops the mind by training. And that is called a civilized nation which has civilized manners or manners which conform to the standard of reason and politeness. We call it in our native vernacular, ein gesittetes Volck [a cultured people], just as with respect to their usages barbarous nations are called, ungesittete Völcker [uncultured peoples]. But since barbarous nations have uncivilized usages, therefore to a barbarous nation is opposed a nation cultured and civilized.
§ 888, part 1, Jus Nat., and § 769, Psych. Emp.
§ 583, part 1, Jus Nat.
§ 566, part 1, Jus Nat.
§ 570, part 1, Jus Nat.
§ 43.
If a cultured nation is assumed to cultivate the intellectual virtues without restriction, it will scarcely happen that it will not at the same time become civilized, since civilized customs develop from intellectual virtues, just as the uncivilized from the natural inclinations, unrestricted by reason. But there are indeed intellectual virtues also, which of themselves do not in the least correct morals and do not destroy barbarism. Hence it is not unusual that learned men exist, who have not undeservedly acquired fame of name, who are marred by bad and uncouth manners. Lofty genius and no ordinary shrewdness is required, if any one would excel in integral calculus and higher geometry. Therefore whoever does excel, has a name deservedly honoured. But to whatsoever extent at length integral calculus may be carried and to whatsoever height higher geometry, or the geometry of curves, may have been carried, nevertheless integral calculus and higher geometry do not refine the impulses even in the slightest degree, and consequently contribute nothing to the correction of manners. Nay more if any one uses up all his time in calculus alone
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and in the application of it to geometry, when he thinks that he excels in this study and surpasses others, ambition, which controls his affection, brings forth pride and disdain, with ignorance as a midwife, and finally arrogance and ambition, by which vices he is led astray to do those things which are a disgrace to himself and to his class, and when he associates with strangers, he very greatly retards the growth of the sciences. If besides he lives to himself alone, and avoids association with men whom charm and grace of manners recommend, he either has no manners or uncouth ones, by which he brings the science which he cultivates into contempt with those who are not able to pass judgement on it for itself. Scholars of this sort, who neglect the studies fitted to refine the impulses and find pleasure only in those which do not destroy barbarism, are rightly considered semi-barbarous and, when they surpass others in number, make the nation semi-barbarous.
§ 54. That nations ought to be cultured and civilized, not barbarous
§ 35.
§ 199, part 1, Jus Nat.
§ 53.
Nations ought to be cultured and civilized, not barbarous. For nations ought to perfect themselves and consequently their intelligence. Therefore, since a nation is cultured which perfects its intelligence and consequently develops the mind by training, nations ought to be cultured. Which was the first point.
§ 53.
§ 895, part 2, Phil. Pract. Univ.
§ 131, part 1, Phil. Pract. Univ.
§ 259, part 1, Phil. Pract. Univ.
Since a nation ought to be cultured, as proved above, in point 1, and therefore ought to develop the mind by training, in determining its actions, too, it ought not to follow the leadership of its natural inclinations and aversions, but rather that of reason, which the law of nature imposes as a sort of rule of conduct and also urges proper decorum. Therefore, since a nation is civilized which enjoys customs conforming to the standard of reason and politeness, nations ought to be civilized. Which was the second point.
§ 204, part 1, Phil. Pract. Univ.
§ 53.
§§ 52, 53.
Finally, since a cultured and civilized nation is not barbarous, moreover since nations ought to be cultured and civilized, as shown above, in points 1 and 2, nations ought not to be barbarous. Which was the third point.
Note, § 53.
It is indeed more to be desired than hoped for that all nations should be cultured and civilized; but it cannot for this reason be denied
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that it is the duty of a nation to seek to become cultured and civilized, developing the mind with the training which destroys barbarism. For there is no question here as to what sort nations are and why it happens that they are such, but what they ought to be. It happens that nations are barbarous through no fault of nature, as if she had refused them the dispositions necessary to the attainment of the training which destroys barbarism, but through the lack of the opportunity to raise the natural dispositions into a habit of life and through the presence of obstacles which divert and distract the mind from this desire and attempt. Who will persuade himself that the natural dispositions of the Greeks have been so changed that they to-day are so utterly unadapted to the learning in which they formerly excelled, and that training without natural gifts does not avail? But since a nation may be cultured, although it be not civilized, especial care must be used that it become civilized, namely by developing the mind by that training especially which removes barbarism. So the Chinese gave their best efforts to training in manners and to statecraft, and so from the most ancient times they have been prominent among the more civilized nations and are so to-day, yet it happens that few, nay, almost none of them have made advances in metaphysics or physics, much less have they acquired the fame of Europeans in mathematics. But on these points a greater light is shed by moral philosophy to be derived a priori from the nature of the human soul. It is sufficient for the present to add the following corollary.
§ 55. What training is especially suitable to nations
§ 54.
Since nations ought to be cultured and civilized and not barbarous, they ought to develop the mind by that training which destroys barbarism, and without which civilized customs cannot exist.
Note, § 54.
§ 53.
Indeed there is no training at all which cannot contribute something towards correcting the will. Still not all training of itself tends to its correction. Therefore consideration must be given especially to that which of itself and directly conduces to this; further perfection, moreover, is to be expected from that which of itself has the least connexion with the appetite. But these things belong to a deeper inquiry, and of them we shall speak more properly in another place. Here is
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pertinent the example of the Chinese of which we have already spoken. The correction of the will depends of course upon the perfection of the intellect; nevertheless there is need of much caution, lest we may pervert the will by perfecting the intellect. This is a point to be considered among those things which we have suggested belong to a deeper inquiry.
§ 56. What purpose nations ought to set before themselves in perfecting the intellect
§ 54.
§ 53.
§ 29.
Likewise because nations ought to be civilized, consequently ought to perfect the intellect, moreover since the perfection of a nation consists in its fitness for attaining the purpose of the state, and since the condition of a nation is perfect, if nothing is lacking in it, which it needs for attaining that purpose; nations in perfecting the intellect ought always to consider the purpose of the state and those things which they need for attaining this purpose, consequently they ought to direct all their efforts to this end.
§ 2.
Note, § 28.
§ 30.
Inasmuch as the state is considered as a single person, to it belongs also an intellect peculiar to the nation, or the human intellect is to be looked at in its relation to the nation itself. Since, therefore, we are here speaking of the perfecting of the intellect, what things are said concerning it are not to be considered without regard to the nation, which as a nation we argue ought to perfect the same. Those things which we have said concerning the preservation of the nation, are with proper variation to be understood also here and in regard to other things which are said of the duties of nations. But just as it is plain from those things which have been proved concerning the establishment of the state, what things are required both for the perfecting of a nation, and for the perfecting of its condition, so likewise it is understood from this, what sort of an intellect ought to be attributed to a nation as such and consequently how it ought to be perfected, in order that a nation be in itself reputed cultured, and in what sense intellectual virtues must be applied to nations, that they may suit it as a nation and that that, which belongs to a nation as such, may be distinguished from that which comes from the individuals to it.
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§ 57. How we must look to a nation in the improving of the will
§ 54.
§ 57, part 2, Phil. Pract. Univ.
§ 53.
§ 56.
§ 321, part 1, Phil. Pract. Univ., and § 547, part 1, Jus Nat.
Likewise since nations ought to be civilized, and therefore ought to have manners adapted to the rule of reason, and consequently to the law of nature, it is evident, as it was before, that in perfecting the will we ought to look to the purpose of the state and to those things which we need for attaining it, and therefore to direct all moral virtues to that end.
Note, § 30.
Just as in any nation we conceive an intellect peculiar to the nation as such, so also in it a will is thought of peculiar to the nation as such. Therefore just as by force of intellect it knows those things which are necessary to the perfection of itself and its form of government, so there ought to be produced a fixed and continual desire to strive after those things which produce this perfection and to avoid the things opposed to it. And hence we must decide what virtues are especially appropriate to a nation and what sort they ought to be, and in what way all other virtues may aid them. For a certain connexion exists between moral virtues, by which one is made dependent upon the other, so that therefore Christ will pronounce him a transgressor of the whole law who transgresses one precept. Just as the intellect of a nation, so also its will is in the ruler of a state, but it passes over into the intellect and will of the individuals in their various kinds of life as if to the organs of his body. And although these things may seem lofty, and those who decide hastily concerning things viewed as through a lattice may perchance include them among the Platonic ideas; nevertheless they follow, as it were spontaneously, when those things are given which we have proved concerning the establishment of the state in the eighth part of “The Law of Nature,” so that there is need of nothing further, unless to urge that here the precepts are general. But since in this way the motives for virtues are redoubled, their cultivation likewise is facilitated, so that such arguments must not be considered to be rashly urged.
§ 58. Of the right of a nation to purchase things for itself from another nation and to sell its own goods to the other
§ 35.
§ 29.
§ 13, part 5, Jus Nat.
§ 10, part 8, Jus Nat.
§ 126, part 3, and § 322, part 4, Jus Nat.
§ 128, part 1, Jus Nat.
§ 142, part 1, Phil. Pract. Univ., and § 23, part 1, Jus Nat.
To every nation belongs the right to purchase for itself at a fair price the things which it needs, from other nations, which themselves have no
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need of the same, but it has not the right to sell its products to another nation without its consent. For since a nation ought to perfect itself and its condition and therefore ought to be fitted to attain the purpose of the state, and since its condition is not perfect unless it has those things which make for the accomplishment of that end, and since a sufficient livelihood is part of the purpose of the state, that is, an abundance of those things which are required for the necessity, convenience, and pleasure of life; whatever it does not itself have, it is necessary for it to procure from others. Therefore, though every man has the right to procure for himself at a fair price from others the things that he needs, nevertheless no one has the right to procure from you the things which you yourself need, and since these natural rights on account of their immutability are not, as such, taken away because nations have arisen by bringing together civil societies, the right belongs to every nation to purchase at a fair price for itself the things which it needs, from those nations who themselves have no need of the same. Which was the first point.
§ 318, part 4, Jus Nat.
But since no man can be compelled to purchase things for himself from others, or from one rather than from another, no nation has the right to sell its goods to another without its consent. Which was the second point.
§ 32.
§ 28.
§ 23, part 8, Jus Nat.
§ 322, part 4, Jus Nat.
The right indeed of purchasing goods for one’s self from other nations at a fair price, it seems, can be inferred from the right to those things without which a nation cannot preserve itself because the union cannot endure unless the individuals are preserved; nevertheless since that right has reference to the property which belongs to other nations, there should also fall upon the other nations the obligation from which this right arises, such as is the obligation to share things one with the other at a fair price.
§ 59. Of forbidding the importation of foreign goods into a territory
§ 58.
§ 850, part 1, Jus Nat.
Since no nation has the right to sell its goods to another nation without its consent, if any nation is not willing that certain foreign goods be brought into its territory, it does no wrong to the nation from which they come, consequently if the bringing in of foreign goods and their
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sale is prohibited, there are no just complaints by foreigners concerning this prohibition.
§ 440, part 3, Jus Nat.
§ 2.
§ 3.
Foreigners complain on account of the loss of gain, which is not owed to them by another nation. If the complaints are poured forth upon the nation itself, they are unjust; if indeed they are limited to the loss of gain, they are free from injustice, although otherwise they may be subject to some imputation of wrong, inasmuch as they are opposed to some natural duty. But if the prohibition which causes loss of gain should have no legitimate reason, arising of course from the purpose of the state, or from the duties of the nation to itself; complaints are not unjust, because they are in regard to the duties of humanity due to one state from another. But a refusal to perform a duty of humanity must be endured. Investigation is difficult, however, as to whether complaints of this sort are just or unjust, because the reasons for the prohibition are rarely intimately known. Lest there may be some obscurity, consider the merchant, from whom you have for a long time purchased many wares; but you have reasons why you may wish to purchase such wares no longer. The merchant loses the profit, which he was to have had, if indeed you had continued your purchases. But who pray even in a dream will think that the merchant has just reasons for complaint against you, because you may not wish to make further purchases of wares of that sort, on the ground that he would lose his profit, which he could have had if the purchases had been continued. The things predicated of nations are in no other way more clearly and easily understood than by considering what under the same circumstances may be true of individual humans living in a state of nature; for that is to be applied to nations. But what we have said of the injustice of complaints and unfairness of the same, when merchandise is barred from some territory, the same in general holds good in regard to any complaints whatsoever arising from the denial of the duties of humanity, not only between nations, but also between private individuals.
§ 60. What commerce is
Commerce is said to be the right to buy and to sell again anything whatsoever, movable and moving, that is necessary, useful, or pleasant.
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So the objects of commerce are wine, oil, grain, cattle, wax, silk, cloth, linen. And where slavery is allowed, man servants and maid servants or slaves are bought and sold. This kind of commerce is called in our native vernacular, der Sclaven-Handel [slave trade].
§ 61. Divisions of commerce
Internal commerce is said to be that which those engage in who are subject to the same civil power, but that is called external which is transacted with foreigners. The former we call in the native vernacular, einheimischer Handel [domestic trade], the latter indeed we call auswärtiger Handel [foreign trade].
For among us likewise commerce is usually classified by the nature of its object and from this peculiarity names are assigned. So we speak of Vieh-Handel [cattle trade], if of herds and flocks; Woll-Handel [wool trade], if wool; Eisen-Handel [iron trade], if iron; Wein-Handel [wine trade], if wine is bought and sold, and so on. But these divisions at present have no utility, so that the varieties are not to be increased more than necessary.2
§ 62. Of the advantage of internal commerce
§ 60.
§ 61.
§ 293, part 1, Jus Nat.
§ 937, part 4, Jus Nat.
Since the practice of commerce consists in this, that whatever things are movable or moving, whether they are necessary, useful, or pleasurable, are bought and sold again, and those are engaged in internal commerce who are subject to the same civil power; internal commerce has this advantage, that every one can have those things which are required for the necessity, advantage, and pleasure of life, and since any labours
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can be purchased from another for money and things are bought and sold for money, internal commerce has this advantage also that the same money is continually transferred from one to another and is turned to the advantage of a very great number.
There is the greatest advantage in internal commerce, for it is the one means, as far as it goes, by which individuals may be provided with the things they need for the necessity, advantage, and pleasure of life. Experience teaches this fully, so that it seems superfluous to say more.
§ 63. Of the advantage of foreign commerce
§ 60.
§ 61.
§ 937, part 4, Jus Nat.
Likewise since the practice of commerce consists in this, that whatever things are movable or moving, whether they are necessary, useful, or pleasurable, are bought and sold again, moreover since external commerce is transacted with foreigners, external commerce has this advantage, that the things which are lacking in one nation, but needed for the necessity, advantage, or pleasure of life, can be purchased from another nation, and since things are bought and sold for money, if more things are sold to other nations than are purchased from them, the nation grows in wealth, nay more it can attain to the greatest wealth.
§ 10, part 8, Jus Nat.
The advantage of foreign commerce is a double one. The one consists in that it procures a sufficiency for life; the other that it increases the wealth of the nation. The former is easily understood; the latter is proved by plain experience through the examples of nations among whom commerce flourishes.
§ 64. Of the obligation of engaging in internal commerce
§ 5, part 8, Jus Nat.
§ 4, part 8, Jus Nat.
§ 62.
Nations are bound to engage in internal commerce. For since a nation is a multitude of men associated into a state, those who form a nation are bound to each other to gain by their combined powers those things which are required for the necessity, advantage, and pleasure of life. Therefore, since internal commerce has this advantage, that every one can have those things which are required for the necessity, advantage, and pleasure of life, nations are bound to engage in internal commerce.
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§ 4, part 8, Jus Nat.
§ 789, part 3, Jus Nat.
§ 123, part 3, Jus Nat.
§§ 420 and fol., part 8, Jus Nat.
There is no reason why you should object that necessity itself demands internal commerce and urges men to engage in it. For it is not enough that compelled by necessity men buy and sell again their property; but it is also required that they do this from a sense of duty, in order that they may not consider their own advantage simply, but likewise that of another, consequently that they may engage in commerce not without equity and justice. But although we have derived the obligation from agreement in the proof, which itself has already been confirmed by the natural obligation of observing agreements, nevertheless the obligation, which comes from an agreement, rests upon the natural obligation of mutual transfers of ownership in things. There is the added consideration, that the ruler both can and ought to promote internal commerce, if he wishes to satisfy his duty, and likewise that he is bound to see to it that nothing which is contrary to equity and justice should be allowed in commerce. It is not merely one thing, therefore, which must be laid down for the ruler with regard to internal commerce.
§ 65. How the wealth of a nation is determined
§ 2.
§ 353, part 4, Jus Nat.
The wealth of a nation is determined by combining the money of the individuals into one sum. For since a nation is considered as an individual person, the money which belongs to all together combined into one sum is the money of the nation. Therefore, since money itself is not used up, as is self-evident, although one is ever receiving it from another, the amount of it nevertheless is not on this account diminished in the nation, but the quantity of it remains the same. Therefore, since wealth is determined by the amount of extra money, the wealth of a nation also is determined by combining the money of the individuals into one sum.
Of course the things that belong to the individuals, inasmuch as the individuals together ought to be considered as a single person, belong to the nation. For the nation has nothing except that which of itself belongs to the individuals. Therefore if the question arises as to the money of the entire nation, it is undoubtedly necessary that the money of the individuals combined into one sum be assigned to the nation. Nor is this at variance with common notions, for we all call a nation
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rich, if it has much money, without consideration as to how it is distributed among individuals; for it is not necessary that individuals be rich, for the nation to be rich, just as the individuals are not learned, if the nation is learned. Hence has arisen the proverb, or at least it is not inaptly transferred here: the poor man is found everywhere.
§ 66. What nation is rich
§ 65.
§ 43.
Since the wealth of a nation is determined by combining the money of the individuals into one sum, consequently since it matters little how the money is distributed among individuals, the nation is rich in which there are many rich families.
So the English and the Dutch are reputed rich nations, because among both nations there are many rich families. As long as we look at the nation itself as a nation, or even with respect to other nations, it makes no difference how the money is distributed among the individuals. But it is another proposition, if the individuals, who make up the nation, are considered with reference to each other, with the idea of imposing burdens on them, so that no one may be too heavily loaded. But since money can be stamped out of silver, silver vessels and any other things made of solid silver are on a par with coined money, since in case of necessity, when there is an extraordinary need of a great sum of money, they can be turned into money.
§ 67. What things make a nation rich
§ 65.
§ 63.
Likewise because a nation is rich which possesses very large amounts of money, since moreover money is increased by the aid of foreign commerce, external commerce can make a nation rich.
Indeed there is no other reason why maritime nations, as the Portuguese, the Spaniards, the English, the Dutch, have established trade with far away nations, and why other nations imitate them.
§ 68. When commerce makes a nation poorer
§ 65.
In like manner since the wealth of a nation is determined by combining the money of the individuals into one sum, and since money is diminished
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by external commerce, if more is bought from foreign nations than is sold to them—a fact which is self-evident—external commerce makes a nation poorer, if it buys more from other nations than it sells to them.
Of course more money is taken away than is received and therefore it is necessary that it should steadily decrease. Therefore in external commerce there is need of much caution, lest it be injurious to a nation. But this is to be more fully discussed in the “Politics.”
§ 69. Of the power of a nation
§ 972, part 1, Jus Nat.
A nation is said to be powerful which can resist the force of other nations by which either the nation itself or its property is attacked. Therefore the greater its power for resisting foreign attack, the more powerful the nation is. And since for resisting foreign attack, consequently for defending itself and its property against other nations, or even for obtaining by force its own right from another nation which refuses to concede it, both a number of soldiers, not infrequently vast, and enormous expenditures are required—a fact which is quite plain from experience—the power of a nation depends upon the number of men who can perform military service, and upon its wealth. And since it is just the same whether the soldiers are natives or foreigners hired for a price, a nation is still rated as powerful, if it is rich enough to hire for a price as many foreign soldiers as it needs.
Nevertheless it is quite plain that the power of that nation must be considered greater, which has no need to purchase foreign aid, but is sufficient of itself alone, since in the case of hiring foreign soldiery, power is made dependent upon the consent of other nations, which cannot always be obtained nor obtained without delay, which quite often is harmful. But how many men are given up to utter destruction, when a war blazes up, and how great expenses have to be incurred for military affairs, the records of all times show and we have experienced in our own days. Indeed if one may believe recent announcements, the French alone in the present seven years’ war have lost 146,000 able-bodied men and have spent 840,000,000 French livres or 280,000,000 [German] thalers—a thing which cannot be done
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except by a very powerful nation. From this too it is understood how great the power of a nation ought to be, if the war is to be continued through several years.
§ 70. Of the obligation to strive for power
§ 35.
§ 29.
§ 15, part 8, Jus Nat.
§ 12, part 8, Jus Nat.
§ 69.
Nations ought to strive as far as they are able to be powerful. For every nation ought to perfect itself, consequently to strive to be fitted to accomplish the purpose of the state. Therefore, since security also is required for the purpose of the state, consequently freedom from fear of force, especially external force, it ought also to strive to be able to resist the force of other nations by which it or its property is assailed. Therefore, since a nation is powerful, if it is strong enough to resist, nations ought to strive to be powerful. Which was the first point.
§ 209, part 1, Phil. Pract. Univ.
But since indeed no one can be bound to do that which is impossible, nations ought to strive as far as they are able to be powerful. Which was the second point.
The power of a nation must be considered to be among those things which do not depend altogether upon itself, but are subject to the vicissitudes of fortune. The obligation therefore is not to be extended beyond that which can be done. But a nation errs if, when it can increase its power, it neglects to do so, and it pays the proper penalty of its weakness, if from this it suffers the loss which at length results.
§ 71. Whether to attain a licit end one may use illicit means
§ 170, part 1, Phil. Pract. Univ.
§ 350, part 1, Jus Nat.
§§ 519, 536, part 2, Jus Nat.
To attain a licit end one may not use illicit means. For we are bound to forego that which is illicit. Therefore one may not use illicit means to attain a licit end.
§ 383, part 1, Jus Nat., and § 170, part 1, Phil. Pract. Univ.
For example, every man is bound to preserve his own life, consequently he is expected to look out for food and drink for himself. Nevertheless he is not therefore allowed to steal or to carry away what belongs to another, that he may have something to live on. For this is illicit, although the former is licit.
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§ 72. Of the illicit method of increasing power
§ 71.
§ 70.
§ 1111, part 1, Jus Nat.
§ 1109, part 1, Jus Nat.
Since it is not permissible to attain a licit end by illicit means, nations, although they ought to strive as far as they are able to be powerful, nevertheless ought not to increase their power by an illicit method, consequently since an unjust war is illicit, and since there is no just cause of war unless a wrong has been done or threatened, a nation may not subject other nations to its control by force of arms simply for the sake of increasing its own power.
§ 55, part 8, Jus Nat.
§ 858, part 1, Jus Nat.
§ 859, part 1, Jus Nat.
Every nation is naturally free. Therefore since liberty is an absolute right, he who simply for the sake of increasing his power subjects a nation to his control by force of arms, by taking away its right does it a wrong. Now there are many illicit methods of increasing one’s own power, all of which cannot be named here in detail. But they are easily recognizable, because they consist in acts prohibited by the natural law, or which are contrary to the law of nations, as we show in the present volume.
§ 73. Whether one nation must necessarily engage in commerce with another nation
§ 356, part 3, Jus Nat.
§ 237, part 1, Phil. Pract. Univ.
§ 938, part 4, Jus Nat.
§ 60.
§ 58.
It depends upon the will of any nation whether it desires to engage in commerce with another nation or not, and upon what condition it desires to engage in it. For the right to purchase things for one’s self from another is an imperfect right, consequently no one can be compelled to allow things to be purchased by us from himself, or to sell those things to us. Therefore, since commerce consists in the right of buying and selling certain things, and no nation is bound to allow that things be carried from another nation into its territory and sold there, no nation likewise can be compelled to engage in commerce with another nation; consequently it depends upon the will of any nation whether it desires to engage in commerce with another nation or not. Which was the first point.
§ 60.
§ 11, part 3, Jus Nat.
For since by allowing commerce with a nation some right is granted to it, while it depends upon the will of the one transferring and consequently granting the right upon what condition it wishes to grant a certain right to another; likewise it depends upon the will of any nation upon what
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condition it wishes to engage in commerce with another. Which was the second point.
§ 128, part 3, Jus Nat.
§ 156, part 1, Jus Nat.
§ 906, part 1, Jus Nat.
§ 356, part 3, Jus Nat.
For no one has the right by nature to purchase for himself from another that which the other himself needs. Moreover by force of natural liberty the decision must be left to the other, as to whether he himself needs those things which you wish to purchase for yourself from him. And therefore that right is an imperfect one, as we have already shown elsewhere. Therefore in these matters the mere whim of the nation rules, in which one must acquiesce. Therefore likewise any nation can declare the condition upon which it desires to allow or bind itself to commerce with foreign nations.
§ 74. How a perfect right to external commerce is acquired
§ 73.
§ 393, part 3, Jus Nat.
§ 788, part 3, Jus Nat.
§ 364, part 3, Jus Nat.
§ 23.
Since it depends upon the will of any nation, whether it desires to engage in commerce with another nation or not, and upon what condition it desires to engage in it, since moreover no one can bind himself perfectly to another except by a promise, that is, by agreements; a perfect right to engage in commerce with another nation cannot be acquired except by agreements, consequently that right is only a stipulative right.
§ 1043, part 8, Jus Nat.
§ 55, part 8, Jus Nat.
§ 393, part 3, Jus Nat.
§§ 235, 236, part 1, Phil. Pract. Univ.
§ 788, part 3, Jus Nat.
The ruler can impose internal commerce on his subjects and these are bound to obey him. But there is certainly another rule for external commerce, since nations are naturally free. Therefore since no private individual can bind another private individual to himself perfectly, and thus acquire a perfect right against him, except by a promise, so also no nation can acquire a perfect right to external commerce except by agreements. By agreements of course an imperfect obligation becomes perfect.
§ 75. Of the bare allowing of commerce
§ 61.
§ 74.
§ 73.
Since a perfect right to engage in commerce with another nation, that is, in external commerce, is not acquired except by agreements, if one nation simply allows another to engage in commerce with it, from that fact a perfect right to this external commerce is not attained, therefore since it depends upon the will of the other whether it is willing or unwilling to
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engage in it and upon what condition it wishes to engage in it, the one nation does no injury to the other, if it restricts commerce in any way whatsoever and arranges as to the manner of engaging in it according to its liking, however and whenever shall seem best to it.
§ 58.
§ 124, part 3, Jus Nat.
§ 268, part 4, Jus Nat.
§ 9.
§ 61.
§ 229, part 1, Phil. Pract. Univ.
Here is pertinent, what we have already shown above, although that may seem quite plain, that the transportation of foreign merchandise and its sale in his territories can be prohibited by the ruler. For although nations, like single individuals, are bound to give up their goods to each other in case of mutual need, although not gratis, nay although nations are understood to have united into a certain supreme state, whose individual members are single states, and in this respect external commerce may be likened to internal commerce, nevertheless it does not follow from this, that nations are bound by nature to engage in commerce with others, so that the freedom of determining according to their liking in these matters is taken away from them. So formerly the Chinese, for the purpose of preserving their own interests, did not wish to unite in trade with other nations. Nor did they err in that, because they do not need the goods of other nations; but even if the things which they themselves were able to do without had been of especial use to other nations, nevertheless the duty toward themselves was superior to the duty toward others. But if you think of nations as fellow citizens, and the commerce, in which they are engaged, as internal, no other conclusion follows from this than that it depends wholly upon the will of the nations, whether or not they wish to keep up trade with one another, and whether the practice ought to be a matter of liberty or of necessity. For is not any one in the state free to buy from and sell to any one he wishes, and may not the two as they desire make definite stipulation concerning buying or selling, in order that perfect rights may be acquired? No obstacle is presented by civil laws promulgated concerning commerce in general by which that liberty is hardly abridged. Moreover corresponding to these laws are natural laws, by which nations are ordered to engage in commerce one with the other, as will be proved a little later. So nothing is taught by us which involves a contradiction, but one point is accordant with all, there is one harmony, provided only all things are observed with keen insight. Therefore this concept of the supreme
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state clears up wonderfully all things which are to be maintained concerning the commerce of nations, nay, it leads us by the hand to the discovery of them.
§ 76. What the rights of pure power and the acts of pure will are
The rights of pure power are said to be those which any one may exercise or not as seems best to himself, free from all outside coercion. And from this, acts of pure will are said to be those which depend upon our will alone, as to go and to stay, and consequently acts of pure will are those which belong to the exercise of rights of pure power, as to buy or sell wine or whatever merchandise you choose, where you will.
De Jure Belli ac Pacis, lib. 2, c. 4, § 15.
The rights of pure power are not subject to definite laws, nor do they depend upon agreement, but in their case the mere will of the one exercising them rules. These rights therefore are altogether free, and in this respect they are even called jura libertatis [rights of freedom] by Grotius. Nor is there need with him to distinguish from the rights of freedom those which are not exercised daily, but only once when it shall be convenient, as the redemption of a pledge, if there has been no agreement concerning a definite time within which it ought to be redeemed. For then you are undoubtedly free to use that right when you will, nor can you be compelled to do contrary to your desire what must be done once for all, for example to redeem your pledge, when it shall seem best to another. The act, therefore, is one of pure will.
§ 77. What sort of a right commerce between nations is
§ 76.
§ 73.
§ 76.
Since a right of pure power is that which any one may exercise or not as seems best to himself, free from all outside coercion, moreover since it depends upon the will of any nation whether or not it wishes to engage in commerce with another nation, and upon what condition it wishes so to engage; commerce between nations is of itself, or naturally, a right of pure power, consequently acts pertaining to it are acts of pure will.
Note, § 76.
In order that no doubt may arise, those points must be considered fully which we have just noted. Moreover from what follows later, it is
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plain that it is of no little importance to recognize what sort of a right commerce between nations is.
§ 78. Of the prescription of rights of pure power
§ 76.
§ 1024, part 3, Jus Nat.
The rights of pure power cannot be barred by prescription, and they are not lost, except from the time when a prohibition or order has intervened, and obedience has been given to it, with adequate evidence of consent. For you can use or not use the right of pure power, as shall seem best to you, nor can any other one compel you to use it or not use it. Therefore from the fact that you use it during a long period without any interruption, it cannot be understood that you wish always to use the same, and that you ought not to be free not to use it longer, if it shall seem best to you not to use it longer. And on the other hand, if you do not use this same right when you could, from that it cannot in the least be understood that you do not wish to use it, if it shall seem best to use it. Therefore, although by prescription a personal right may be lost by presumed consent, the rights of pure power cannot be barred by prescription or lost. Which was the first point.
§ 1024, part 3, Jus Nat.
But if another prohibits you from using a right which you were able to use and have used up to this time, or compels you to use the right which you have continuously used but do not wish to use further, and with adequate evidence of consent you obey the prohibition or order, assuredly it is understood that you agree in this, that you ought not to be free to use or not to use further, but that you wish to use constantly, or not to use the same, as the case may be, consequently you lose your right by the presumed consent. Therefore, since the loss of your right by presumed consent is prescription, the right of pure power is barred by prescription, from the time when the prohibition or order has intervened, and obedience has been given to it with adequate evidence of consent. Which was the second proposition.
For example, let us assume that you are free to use any mill-house whatsoever, but that for a long time you have used a certain definite mill-house, on that account your right to use any mill-house whatsoever, as may have been suitable, is not barred by prescription, nor does the master of the mill-house acquire by prescription the right to
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compel you to use none except his mill-house. Therefore, although you have used that mill-house through a hundred and more years, this nevertheless in no way at all prevents you from using another, if it shall have so pleased you. But let us suppose that you do use another and that the master of the mill opposes it and forbids you to use any other than his, and moreover suppose you do this, although you are driven by no compulsion so to do, and do not oppose this in any way, although you might oppose it, it is rightly presumed that you agree to this, not to use any other mill than his. And therefore you lose your right of using any mill whatsoever, and the master of the mill from that time acquires the right of compelling you to use his mill alone. Moreover it is a matter of positive law that prescription requires a certain number of years, which it declares enough for presuming consent from silence.
§ 79. Of the barring of commerce by prescription
§ 78.
§ 74.
§ 78.
§ 60.
§ 1024, part 3, Jus Nat.
Since the rights of pure power cannot be barred by prescription, since moreover commerce between nations of itself, that is, if there is no agreement added thereto, is a right of pure power; commerce between nations cannot be barred by prescription, consequently since commerce consists in the right of buying and selling again, if through a hundred years two nations have united for trade, nevertheless on this account the one nation is not bound to allow the other to sell its goods to the former, or to buy its own goods from the other, nor is freedom in buying and selling its goods lost.
§ 73.
For example, if a certain nation for however long a time has bought grain from a certain other nation, nevertheless the one cannot on this account compel the other to buy in the same way ever afterwards, if it desires not to do so. And on the other hand, if a certain nation has sold wine to a certain other nation, the latter is not bound to allow this nation ever afterwards to bring wine into its territories and sell it there. The same is understood of any other kind of merchandise whatsoever. Freedom in buying and selling always remains unimpaired to every nation.
§ 80. Of the voluntary submission of a nation
§ 32.
§ 28 h, and § 9, part 8, Jus Nat.
§ 69.
§ 70.
§ 159, part 1, Phil. Pract. Univ.
If one nation shall not be strong enough to protect itself against the wrongs done by other nations, it can submit itself to some more powerful
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nation, under definite conditions, upon which an agreement has been made, and the rights of each are to be determined in accordance with the compact of submission. For every nation has the right to those things without which it cannot preserve itself. Therefore, since it cannot preserve itself, unless it can protect itself against the wrongs done by other nations, consequently unless it is sufficiently powerful, moreover since the lack of power may be supplied by the power of another, and nations ought to strive as far as they are able to be powerful; if any nation shall not be strong enough to protect itself against the wrongs done by other nations, it can subject itself to some more powerful nation. Which was the first point.
§ 11, part 3, Jus Nat.
§ 698, part 3, Jus Nat.
For since it depends upon the will of any one, upon what conditions he wishes to transfer a certain right to another, it depends upon the will of nations also, upon what conditions one nation desires to submit itself to another, or to give itself into tutelage, and upon what conditions the other nation desires to receive it under its protection, consequently they must agree on these points. If therefore any nation is not strong enough to protect itself against the wrongs done by other nations, since it can submit itself to some other more powerful nation for the sake of protecting itself, as shown above in point 1, it can submit itself to it on definite conditions, upon which they shall have agreed. Which was the second point.
§§ 788, 361, part 3, Jus Nat.
§ 382, part 3, Jus Nat.
Finally, since agreements of this sort are stipulations, and since no one can acquire more right from another than that other wished to transfer to him, if any less powerful nation submits itself to a more powerful one for the sake of protecting itself, the rights of each are to be determined in accordance with the compact of submission. Which was the third point.
§ 55, part 8, Jus Nat.
§ 135, part 1, Jus Nat.
§ 156, part 1, Jus Nat.
Every nation is free by nature. But in regard to this right it can determine to its liking, just as shall have seemed best to it, therefore can diminish its freedom for the sake of its own advantage; this is what happens, if a nation subjects itself to another upon certain definite conditions, or grants some right to another over itself, whatever indeed that may be. But whether a nation is not powerful enough to protect itself against the wrongs done by other nations, and whether it cannot provide for itself by some other agreement than by subjecting itself or giving itself into tutelage to another more powerful nation,
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must be left to the decision of the nation itself in accordance with the principle of natural freedom. Therefore agreements entered into must be kept and there is no question as to whether the nation has acted wisely, which has subjected itself to another for the sake of its own protection, although it could have provided for itself in some other manner, but there must be acquiescence in that as to which agreement has been made.
§ 81. Whether by this act there is a derogation from the sovereign power
§ 80.
Since any nation for the purpose of self-protection can submit itself to another nation under those conditions upon which they have agreed, and the rights of each are to be determined in accordance with the compact of submission; if a certain nation puts itself under the tutelage of another, this can be done either with or without diminution of its sovereign power.
§ 60, part 8, Jus Nat.
§ 44, part 8, Jus Nat.
So this happens without diminution of the sovereign power, if a definite tribute is to be paid annually; for then the nation which owes protection has no other right than that of demanding the tribute as due. And the obligation to pay to another nation annually a certain sum of money, which arises from a contract to pay for an act, does not affect the civil power itself, much less does it derogate from its sovereignty. But if indeed to the nation which owes the protection, is allowed the right of imposing new tributes, as shall seem best to it, or certain things pertaining to the exercise of civil power cannot be done without its consent, or the suzerain power itself can do such things on its own initiative; the submission has certainly been made with derogation from the sovereign power, because the exercise of power as to certain acts depends upon the will of the nation owing protection.
§ 82. Of protection not furnished
§ 827, part 3, Jus Nat.
§ 80.
If the more powerful nation does not furnish the protection promised, it is allowable for the less powerful nation to put itself under the control of another, or to submit itself to such for the sake of self-protection. For if the nation which owes the protection does not
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furnish it, it fails in its agreement, as is self-evident. But if one of the contracting parties fails in his agreement, the other also may withdraw from it. Therefore the less powerful is not bound to stand by its agreement, if the more powerful does not furnish the promised protection, consequently since it is now free from its obligation, by which it was bound under the agreement, nothing prevents it from putting itself under the protection of some other nation or submitting to it for the sake of self-protection.
There is no reason for objecting that the right exists to compel due protection to be furnished. For the less powerful nation lacks strength to coerce the more powerful; if it had possessed the strength, it could have done this. With strength it could of itself have resisted one wronging it, so that it would not have needed another’s protection, if it had possessed sufficient strength to compel the more powerful nation to furnish the protection due to it. The situation is quite different, if the nation to whom protection is owed does not pay the annual tribute owed for it.
§ 83. Of a nation which owes protection infringing upon the rights of the less powerful
§ 239, part 1, Phil. Pract. Univ.
§ 859, part 1, Jus Nat.
§ 920, part 1, Jus Nat.
§ 914, part 1, Jus Nat.
§ 727, Ontol.
If a nation which owes protection assumes for itself a greater right against one less powerful, than it has by the agreement, it is allowable to resist it by force and to seek aid from another. For if a nation which owes protection assumes for itself a greater right against one less powerful than it has by the agreement, this is contrary to the right of the less powerful, consequently the one does a wrong to the other, and therefore injures it. Therefore, since the right belongs to every one of demanding from any one whomsoever, that he should not injure him, and of compelling him not to do so when he attempts to injure him, if the nation which owes the protection assumes for itself a greater right against one less powerful than it has by the agreement, it is allowable to resist by force. Which was the first point.
§ 990, part 1, Jus Nat.
Moreover, since the less powerful cannot of itself resist the more powerful, as is self-evident, and since the right belongs to every one by nature to defend another, nay more, it is bound to defend the other so far as lies
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in its power, if of itself it is not capable of self-defence; it is allowable even to seek aid from another. Which was the second point.
It would undoubtedly be better that a supplementary clause be added to the stipulation of submission that the stipulation should be void, if the nation which owes the protection assumes a greater right for itself than that which has been expressly agreed upon, for thus the right of resisting by aid of another rests on the credit of the stipulations and all objections are barred. This is perfectly in accord with the customs of the ancient Germans, who, since nothing was more time-honoured with them than the pledged word, desired that almost all their rights should rest upon agreements, and nothing was considered more disgraceful among them than to betray a pledge when given.
§ 84. Of prescription in favour of a nation owing protection against a less powerful nation
§§ 1058, 1054, part 12, Jus Nat.
§ 1025, part 3, Jus Nat.
§ 216, part 2, Jus Nat.
If the nation which owes protection assumes for itself a greater right against a less powerful nation than it has by the agreement and the weaker nation does not oppose it, the more powerful by the long acquiescence of the weaker at length acquires the right which it asserts, nay more, the weaker can utterly lose its supreme power and become subject to the more powerful. For if the nation which owes the protection assumes a greater right for itself against the less powerful than it has by the agreement, and the weaker does not oppose this, but allows the right to be assumed for a long time, from the long-continued silence it is presumed to relinquish its right and consent to the usurpation of it. Therefore, since he who gives up the property tacitly consents to the change of ownership, which includes incorporeal benefits, the nation which owes protection acquires at length, by long-continued acquiescence of the weaker nation, the right which it assumes for itself. Which was the first point.
But since the same thing is true in the same way of any right belonging to the supreme power, the less powerful nation can in the same way utterly lose its sovereignty and become subject to the more powerful, which formerly owed it protection. Which was the second point.
§ 1015, part 3, Jus Nat.
De Jure Belli ac Pacis, lib. 2, c. 4, § 12.
There will be no difficulty or obscurity in these matters, provided only there shall have been sufficient examination of those points which
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we have proved as to usucaption and prescription, in an entire chapter in the third part of “The Law of Nature.” Occupation of course gets a new value from abandonment, so that the occupation, which was before illegal, when there is an abandonment by consent of the owner, now begets a right, by force of the tacit consent of the owner. If there is doubt as to this, because it is generally said that what is not effective from the beginning cannot become effective after the fact, Grotius has already solved this doubt. Of course the rule has an exception in the case where a new cause intervenes which is sufficient in itself to beget a right, as in the present instance is the added tacit consent of the weaker nation, against which the more powerful nation usurps some right.
§ 85. Of the occupation of sovereignty in uninhabited territory
§ 5, part 8, Jus Nat.
§§ 31, 32, part 8, Jus Nat.
§ 37, part 8, Jus Nat.
§ 219, part 3, Jus Nat.
If a certain nation occupies an uninhabited territory, it occupies the sovereignty over it at the same time. For since a nation is a number of people associated into a state, the civil sovereignty also belongs to it, whether it exercises that of itself or through another in some manner. If then it occupies some uninhabited territory, to dwell in it and hold its property in it, there is no doubt but that it desires to have sovereignty over it. But if it desires to have sovereignty for itself in that territory, it is understood not to wish to allow another to exercise in it some right belonging to sovereignty, or not to be subject to it. But since this is adequate for the occupation of sovereignty in an uninhabited territory, it follows that if a certain nation occupies an uninhabited territory, it occupies the sovereignty over it at the same time.
§ 11, part 8, Jus Nat.
§ 13, part 8, Jus Nat.
§§ 30 and fol., part 8, Jus Nat.
We are not yet speaking here of warlike occupation, which happens when a nation is expelled that had inhabited a territory already occupied. For of this we must speak in its own place. But it would be absurd for any one to wish to argue that sovereign power does in fact belong to a nation over those who are members of the state, but does not exist over the lands which are under the control of the nation. There is no one that does not readily see that this is opposed to the public tranquillity, which concerns the purpose of a state. Therefore, since civil authority is to be measured by the purpose of a state, the
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same undoubtedly is to be extended to all persons whomsoever, who sojourn in a territory for any reason whatsoever or enter into it. And so the people who inhabit a territory have sovereignty over the entire territory.
§ 86. Another case
§ 196, part 2, Jus Nat.
§ 85.
If families dwelling in the same territory unite into a state, they occupy jointly the sovereignty over the entire territory which was uninhabited. It is the same, whether families dwelling in the same territory unite into a state, after individual families have already beforehand occupied certain parts, that is, after occupation by estates has already occurred, or, as a whole, occupy the territory, after they have combined into a society; for the ownership of the estates always remains distinct from the sovereignty, nor does the sovereignty affect this ownership in any way. Therefore, in exactly the same manner as before, it is plain that, if families dwelling in the same territory unite into a state, they occupy the sovereignty over the entire territory which is uninhabited.
Occupation is assumed to have been made by estates, if separate families or free households are formed before the civil authority is; for the things which were not taken possession of were left in the original common holding. But when they come together into a state, the sovereignty is occupied in that territory and at the same time with it are occupied the places still without an owner, which were already subject to the ownership of the whole and therefore belong to the people.
§ 87. Of the occupation of a territory
§ 189, part 2, Jus Nat.
§124, part 2, Jus Nat.
§ 191, part 2, Jus Nat.
§ 124, part 2, Jus Nat.
If a certain entire territory is occupied by a certain nation, those things which are not apportioned to the individuals belong to the whole. For if a certain entire territory is occupied by a certain nation, those who constitute the nation jointly acquire ownership, and therefore the entire territory belongs to the nation. But since those things become the property of the individuals which are apportioned to the individuals, those things which are not apportioned to the individuals remain in the ownership of the whole nation, and therefore belong to the whole.
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§ 2.
§ 175, part 2, Jus Nat.
§ 129, part 2, Jus Nat.
§ 126, part 2, Jus Nat.
§§ 7, 9, part 2, Jus Nat.
A nation is considered as a single individual. Therefore the things which it occupies are in its ownership, consequently if no other act is added to that of occupation, nothing belongs to all, other than the use of the things occupied in general, as of course any one shall have need. Therefore, since by the simple act of occupation nothing is introduced except a mixed common holding, from which there is no withdrawal except by agreement express or tacit, by which some things pass to the ownership of the individuals, others to a positive common holding,3 and those things which are not subjected to the individual ownership, or to the positive common holding, are left in the mixed common holding. Now if certain things should be in the ownership of individuals, before sovereignty is occupied in the territory, that is, before families unite into a state, the other things which before had been in the original common holding are occupied with the sovereignty and are brought into a mixed holding, from which as before they either pass into the ownership of individuals, or into some positive common holding, or are left in the mixed holding. But if certain things should not be occupied, that they remain in the original common holding is evident of itself; in which case especially applies the right of occupation of things devoid of an owner, as wild animals and fish and likewise inanimate things, as treasures, metals, and minerals, and all things abandoned by the owner, or deprived of an owner by some accident. Of these we have spoken at length in the second chapter of the second part of “The Law of Nature.”
§ 88. Of the division of things
Those things which were left in the original common holding when occupation occurred are called by the Roman jurists res communes [things common]; those which were brought into the mixed common holding of the entire nation and have continued in it, res publicae [things public]; those which came into the mixed common holding of definite groups or communities, res universitatis [things corporate]; finally those which
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have become subject to ownership of individuals are called res singulorum [things of individuals].
Note, § 87.
This division of things made by the Romans is usually considered complicated, especially if things common are to be distinguished from things public. But if you consider those things which we have just said concerning the occupation of territory, by our definitions all those things are distinguished one from the other with sufficient clearness, just as they were divided by the Romans, so that no ambiguity remains. Moreover, it is quite plain that much must here depend upon the whim of those occupying, where the particular things belonging to this or that class are to be enumerated. Among the Romans things considered common were air, flowing water, the sea, shores, fish, birds, and wild animals; for all these things were left by them in the original common holding. Things public were all the rivers, which, seeing that they are under the control of the people, nevertheless as regards use were considered common to individuals, so that it was allowed any one to fish and sail in them as he liked. Things corporate were theatres, racecourses, and the like, as fountains, the forum, the curia, and open squares in cities. Here, too, to-day belong pastures in the country, forests fit for cutting, common groves. Here likewise are to be included temples and ecclesiastical property in city or country. All these things are in the mixed common holding of definite groups, inasmuch as the ownership is with a definite corporation, but the use is open to individuals who belong to the corporation. But since these rights can be changed by the act of men, by agreement between those to whom they belong, and because the use of the things belongs either to the whole or to the individuals, therefore things corporate can be still more minutely subdistinguished, and from this have arisen the difficulties which distract the interpreters of the Roman law. So by force of agreement there seem to be added to the positive common holding things which of themselves are to be referred to the mixed common holding, as when it is not allowed to individuals to drive into the common pastures more than a definite number of cattle, or hay growing in the common meadow is to be distributed to individuals in definite shares. But the mixed common holding suffers no change, if any one is allowed to hew down the quantity of wood which he needs, or mow down grass with a sickle in the common meadow in
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accordance with his needs, or even drive into the common pasture as many cattle as he pleases. Likewise the common use of the temples has reference to the people as a whole, but the use of common meadows and pasture lands belongs to individuals. Nay, the use of those things also, which none except the people as a whole can have, belongs either directly or indirectly to the people as a whole. The temples are an example of the direct use, in which the people as a whole in general are free to attend sacred services; goods assigned to the support of the pastor of the church are an example of the indirect use, since the use of these goods only indirectly belongs to the people as a whole. A like distinction worthy of note occurs also in things public—a thing which we consider superfluous to pursue more at length. But now if you will really depend on our definitions, by which we have distinguished things occupied by a nation, no ambiguity or difficulty seems to be left. But if you shall be pleased to subdistinguish these more minutely, we shall not object. Nevertheless it will be difficult to find in the Latin language words suitable to characterize things so distinguished.
§ 89. Of the derivative way in which a corporation acquires things
§ 12, part 3, Jus Nat.
§ 11, part 3, Jus Nat.
§ 88.
Any one can turn his own property into the property of a corporation, either directly or indirectly, either simply or under a definite condition, as shall seem best to him. For any one can transfer the ownership of his own property to another, whomsoever he shall desire, and in whatever way he shall desire. Therefore he can likewise transfer the ownership of his property to a certain definite group of men, or community, as shall seem best to him; consequently since things belong to a corporation, which come into such a mixed common holding either directly or indirectly, any one can turn his own property into the property of a corporation, either directly or indirectly, either simply or under a definite condition, as shall seem best to him.
§§ 176, 177, part 2, Jus Nat.
So an owner can give or sell, or when dying can bequeath his property to a corporation, nay, he can even appoint any corporation as heir. And so it is plain not only that the property of a corporation can be acquired by original acquisition, but also that a derivative method of acquiring the property of a corporation is allowed. Here, too, belongs
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the case of some one providing for the building, at his own expense, of a fountain for common use in the forum or in another public square that belongs to a corporation.
§ 90. Of the alienation and pledge of property of a corporation
§ 484, part 8, Jus Nat.
§ 507, part 8, Jus Nat.
§ 88.
The property of a corporation cannot be alienated from the corporation at will, nor can it be pledged, unless some pressing necessity exists or the evident advantage of the corporation recommends it. Since a particular church is a certain corporation or community, since, moreover, ecclesiastical property by nature belongs to a particular church in a certain definite place, that property belongs to a corporation. Therefore that the property of a corporation cannot be alienated or pledged at will is proved in the same manner as we have shown likewise in the case of ecclesiastical property. Which was the first point.
§§ 510, 516, part 8, Jus Nat.
§§ 514, 516, part 8, Jus Nat.
That in case of pressing necessity it is allowable to sell or to pledge, is likewise plain in the same manner as we have proved the same in the case of ecclesiastical property. Which was the second point.
§ 511, part 8, Jus Nat.
Finally, if the evident advantage of the corporation recommends the alienation or pledge of the property of a corporation, when nothing is done to the disadvantage of the corporation for the future, but rather there is due consideration for it; nothing prevents the alienation or pledge from being made, since in fact nothing stands in the way of the alienation or pledge, such as a disadvantage which may come to the corporation in the future, as is evident from the proof of the limitation of the right of the church in ecclesiastical property. Which was the third point.
Although we discussed ecclesiastical property in universal public law, nothing as yet had been said of public property, which we were obliged to postpone to the law of nations. Therefore it was not feasible first to prove the things which must be held concerning the alienation and pledge of the property of a corporation, and then apply those same things to ecclesiastical property; but the general demonstration had to be applied to the particular case. Nor is this wrong in any way. So Euclid, when in his “Elements” he discussed the circle as a certain
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sort of curve, makes plain in the instance of the circle what holds true of all curves, and, following his example, Apollonius proves the same things concerning particular conic sections.4 Moreover they were able likewise to prove the same things in general concerning curves and then to apply them to the circle and to conic sections as to species included under a genus, just as afterwards Barrow gave general proofs in his “Geometrical Lectures.”5 If there should have been reasons why there ought to be a consideration of a certain species before there was a consideration of the genus, it cannot be otherwise than that the things which could be proved in regard to the genus, would likewise be so proved in regard to the species that the general demonstration would be applied just as to the species. And hence it happens that something can be proved in regard to the genus in the same manner in which it has been proved in regard to the species. We think it well advised that such cautions be given for the sake of those who have a special liking for accurate method, and in order that the captious criticism of the superficial may be avoided, who seem to themselves not even to have discovered what boys find in a bean, if they censure those things which because of a lack of intelligence they do not adequately understand.
§ 91. Whether the consent of the ruler of the state is needed for alienation and pledge
§ 395, part 8, Jus Nat.
§ 90.
§ 658, part 1, Phil. Pract. Univ.
If necessity urges the alienation or pledge by a corporation of property belonging to it, or its evident advantage recommends it, that ought not to be done without the consent of the superior or ruler of the state. For since the right belongs to the ruler of a state to compel his subjects by force to regulate at least their external acts according to the law of nature, he also ought not to allow corporations to alienate or pledge corporate property at will, and since that may not be done except in case of extreme necessity or plain advantage, the ruler of the state ought to judge the necessity or advantage. Therefore if necessity urges or plain advantage recommends
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that the property of a corporation be alienated or pledged by it, it is necessary that this be done with the consent of the superior; consequently without his consent alienation or pledge ought not to be made.
§ 489, part 8, Jus Nat.
§ 494, part 8, Jus Nat.
§ 768, part 7, Jus Nat.
§ 842, part 7, Jus Nat.
Undoubtedly it is to the public advantage to take precaution lest the property of a corporation be alienated or pledged to the disadvantage of the corporation in the future, and lest those who now make up the corporation take some right away from those who shall constitute the corporation in the future, when they diminish their right. But the consideration of public advantage belongs to none other than the superior or ruler of the state, to whom likewise are subject the actions of those who form the corporation, so far as they have regard to the end of the state. Since corporations consist of individuals and therefore remain the same, even if some withdraw and others succeed to their places, and consequently even if all have died who are now in the corporation, in this respect they are like minors, who have need of a curator in the management of their property, consequently without the consent of their curator they cannot alienate or pledge their property. And so the superior or ruler of the state plays the part of a curator. This indeed is also the reason why the civil laws confer the rights of minors upon corporations. It is customary also to compare corporations to wards whose tutor is the ruler of the state. The natural obligation not to alienate or pledge the property of the state to the prejudice of the future is not sufficient to provide adequately for the future. Therefore it is necessary that there should be some external check in addition, as that the act of alienation or pledge may be invalidated at the will of the superior or ruler of the state.
§ 92. Of eminent domain over the property of a corporation
§ 111, part 8, Jus Nat.
§ 88 h, and § 6, part 8, Jus Nat.
Eminent domain over the property of a corporation belongs to the ruler of the state. For eminent domain over the property of citizens belongs to the ruler of a state. Therefore since the property of a corporation is likewise the property of citizens, eminent domain over the property of a corporation belongs to the ruler of the state.
Note, § 91.
§ 93.
Eminent domain is not to be confused with that right of the ruler of a state upon which depends his consent to alienation and pledge, as is apparent from its effect.
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§ 93. Of its effect
§ 92.
§ 111, part 8, Jus Nat.
Since eminent domain over the property of a corporation belongs to the ruler of a state, moreover since by virtue of eminent domain he can dispose of property belonging to citizens for the sake of the public good in case of necessity; the ruler of a state also can dispose of the property of a corporation for the sake of the public good in case of necessity.
§ 23, part 8, Jus Nat.
N., § 92.
With respect to the advantage of the public the advantage of any corporation or community is considered as a private matter, just as the goods themselves of any corporation with respect to those of the whole state or commonwealth are considered as private goods, although in other respects they are and can be spoken of as public also. And hence is plain the difference we have just mentioned between eminent domain belonging to the ruler of the state over the goods of a corporation and the right otherwise belonging to him over them. Obviously, by virtue of eminent domain consideration is had for the public advantage or the advantage of the whole state, but by the remaining right only for the advantage of the corporation or of that group to which the goods belong. For example, let us assume that in some city there is a public granary, which must be destroyed for the purpose of saving the city. It is allowable to destroy that by virtue of eminent domain, since it is to the advantage of the commonwealth that the city should be defended in the best way.
§ 94. Of the use of the property of a corporation
§ 88.
§ 129, part 2, Jus Nat.
Individuals who are in a corporation have the right to use and enjoy its property, and the use is either open indifferently to the individuals, as shall seem best to each one, or limited by definite conditions. For since the goods of a corporation are in a mixed common holding of definite groups or communities, and since the ownership of the goods in a mixed common holding belongs to the corporation, but the use of them belongs indifferently to the individuals, according of course as each one shall have need, the use of the goods of the corporation also is open indifferently to the individuals who are in it, as shall seem best to each. Which was the first point.
§§ 118, 216, part 2, Jus Nat.
§ 789, part 3, Jus Nat.
But if indeed the property does not admit of that use which shall seem best to each, it is necessary that it should be limited by definite conditions
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agreed upon between the individuals. And since the individuals can jointly dispose of the use of the goods of a corporation as of their own property according to their liking, they are able also to agree together for any reasons whatever as to the method by which the property is to be used and by this agreement to limit the use of the same by definite conditions. Therefore, since agreements must be observed, in this case the individuals are not able to use the property of a corporation except upon those conditions by which its use has been limited. Which was the second point.
So in forests fit for cutting which belong to some district, individuals can cut as great a supply of wood as they need, if indeed there shall be an adequate supply of wood. If, however, in the opposite case, it has been laid down by a definite provision, how much each one is allowed to cut, each one ought to be content with just that amount. But in a public theatre individual citizens may look on, as shall have seemed best to each. And in the same way individuals can hurl javelins on the field used for javelin practice, and bathe in the public bath.
§ 95. Who are restrained from it
§ 88 h, and § 112, part 2, Jus Nat.
§ 130, part 2, Jus Nat.
No one can use the goods of a corporation who is outside the corporation, unless that be allowed him by the consent of the corporation. For the goods of a corporation are in the mixed common holding of the corporation. Therefore, since those who are in a mixed common holding may in their own right exclude all who are outside the corporation, in like manner no one can use the goods of a corporation who is outside the corporation. Which was the first point.
§ 94, Note 2.
Nevertheless, since all together can dispose of the use according to their liking, as we have just proved, it is not to be doubted that those who are in a corporation can by common consent grant to an outsider any use of the goods of a corporation. Which was the second point.
So no one can feed cattle in a common pasture, or cut grain with a sickle in the common meadow, who is outside the corporation, unless that is allowed him by the corporation. But nothing stands in the way of granting this, since it concerns only those who now are in the corporation, that no one outside may feed his cattle in the common pasture or cut grain with the sickle in the common meadow.
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§ 96. Of the prohibition of the proper use of the property of a corporation
§ 94.
§ 336, part 2, Jus Nat.
No one who is in the corporation can without wrong be restrained from using the property of the corporation as it suits him. For suppose some one who is in the corporation is restrained from the use of the property of the corporation permitted by the provision which sets bounds to its use. Since the individuals who are in the corporation have the right of using and enjoying the property of the corporation, either in general, as shall seem best, or by that provision by which the use is limited, his right is taken from him without his consent. But one’s right cannot be taken from him without his consent. Therefore no one who is in a corporation can be restrained from using the property of the corporation in the manner which seems best. Which was the first point.
§ 239, part 1, Phil. Pract. Univ.
§ 859, part 1, Jus Nat.
Therefore, since if he is restrained, his right is taken from him, as demonstrated, consequently that happens contrary to his right, and since he who does what is contrary to his right, does him a wrong; if any one in a corporation is restrained from using the property of a corporation in a proper manner, that is a wrong to him. Which was the second point.
So one cannot without wrong be restrained from cutting in a forest ready to cut the quantity of wood which the law allows to the individuals who are in the corporation, nor from cutting in accordance with his need, if it shall have been allowed generally to every one to cut that quantity of wood which he needs.
§ 97. Whether a right in the property of a corporation can be transferred to another
§ 12, part 3, Jus Nat.
§ 11, part 3, Jus Nat.
By nature nothing prevents any one from transferring, as he likes, the right which he has in the property of a corporation, to any other person whomsoever and in any way he pleases: it is still possible to reach a different agreement. For since any one can transfer any right whatsoever to any other person as he likes and in the way that shall seem best to him, nothing by nature prevents any one from transferring, as he likes, the right which he has in the property of a corporation, to any other person whomsoever, and in any way he pleases. Which was the first point.
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§ 170, part 1, Phil. Pract. Univ.
§ 118, part 1, Phil. Pract. Univ.
But since what is allowed, we are not compelled to do, consequently it is not necessary that we should do it; it is left to our free will to do or not to do as shall have seemed best. Therefore, although nothing by nature prevents any one from transferring, as he likes, the right which he has in the property of a corporation, to any other person whomsoever and in any way he pleases, as shown above, nevertheless it can be agreed otherwise. Which was the second point.
So it is plain that by the law of nature a right in the property of a corporation can none the less be transferred to a stranger than to an associate, or another who is in the same corporation, as well by lucrative title, when given for nothing, as by onerous title, when granted on such terms that something should be given in exchange, both for a fixed time, and at will, either as a whole or in part. So if any one can pasture a hundred sheep in the common pasture, he can transfer to another the right to feed thirty, while he himself feeds seventy. Likewise he can sell or give to another hay due to him from the common meadow, or he can exchange it for something else. But if indeed it shall have been determined that he cannot feed more than a hundred sheep in the common pasture and none except his own; even if he have only fifty sheep, nevertheless he cannot grant to another permission to pasture fifty others in the same place, nor can he rent out his right of pasturing one hundred sheep. Moreover it is readily apparent in this case that the right of pasturing fifty sheep, which he does not use, by no means accrues to the others, who themselves in fact are not able to pasture more than a definite number.
§ 98. Of the ownership and use of public property
§88.
§ 129, part 2, Jus Nat.
Public goods are in the ownership of the whole people, but the use of them belongs to the individuals without distinction, according of course as there shall have been need to any one of them. For the public goods have been brought under the mixed community holding of the whole nation or people and have remained there. Therefore, since goods in a mixed community holding are in the ownership of the corporation, but the use of them belongs to the individuals without distinction, as of course there shall have been the need of the same to each, public goods
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are in the ownership of the whole people, but the use of them belongs to the individuals without distinction, as of course each one shall have need of them.
§ 88.
§§ 88, 94.
§ 112, part 2, Jus Nat.
So, for example, a river is in the ownership of the whole people, or is the property of the people, nevertheless any one of the people as he likes can sail or fish in it, unless the right of fishing shall have been appropriated and shall have come into the ownership of a certain private person, or corporation. But it is to be noted that the river is not to be confused with the water flowing in it. For although the river consists of the bed and the water, the water nevertheless is not looked at as flowing, but in so far as it fills the bed. Whence that is properly called running water which at any given time is in a certain part of the bed, while for instance it is being drawn, but it is not running water in so far as new water continually fills the same part of the bed. For in this regard it belongs to the river. And therefore this does not imply that running water is common, which is in the ownership of no one; while the river, which cannot be thought of without the water, belongs to the whole people, or is in the ownership of the same, by virtue of the present proposition, and because the use of the running water is open to all men, of whatsoever nation they are, while the use of the river is restricted to a definite nation. Obviously this is the difference between things common and things public, that the former are in the ownership of nobody, but the latter are in the ownership of some definite nation, the use of the former is common to all men, but the use of the latter is common only to some people. Likewise the difference is plain which exists between public goods and goods of a corporation. The public goods of course are in the ownership of the whole people and their use belongs in general to all, by virtue of the present proposition; but the goods of a corporation are in the ownership of some definite group or community, and their use is common to the individuals in that group or community. So public goods differ from the goods of a corporation, just as the more general from the special. But if you look at a certain group of men as a people, since each is a kind of corporation; by force of a principle of reasoning the things which we have proved of the goods of a corporation are easily applicable in their way to public goods.
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§ 99. Of the transfer of ownership of public property to the ruler of a state
§ 98.
§ 12, part 3, Jus Nat.
Since public property is in the ownership of the whole people; the people can transfer the ownership of public property to the ruler of the state, while all the use or at least some remains with the people.
So the ownership of a river can be transferred to the ruler of a state, while the use for sailing and fishing, for driving cattle to the river, and watering or washing them there remains with the people, or the right of fishing can be assigned to the ruler of the state, so that he can dispose of it, as seems best. In like manner the ownership of public roads can be transferred to the ruler of a state, their use for travelling and carrying remaining with the people.
§ 100. Of the method of using public property
§ 88.
§ 239, part 1, Phil. Pract. Univ.
§ 910, part 1, Jus Nat.
Every one ought so to use public property that he may not in any manner impair the public use or that common to all. For the use of public property belongs to all without distinction, as of course each shall have need. If, therefore, any one so uses the public property that he in any way injures the public use common to all; this is contrary to the common right of all. Therefore, since no one ought to do anything contrary to the right of another, no one indeed ought so to use public property as to injure in any way the public use, or that common to all.
So no one may build out a pier into the river, or build a mill on it, or draw the water into his own farm, because navigation is impaired, whether the river itself is navigable or makes another river navigable. To build in a public river is not allowed to a private individual for this reason also, that the bottom of the stream belongs to the whole people, and in it a private individual has no right, as to him belongs only a right to the use, not harmful to the other uses, which belong to the people. In like manner if any one desires to surround with a ditch a field adjacent to the public road, he ought to dig the ditch in his own land, nothing being taken from the public road, nor may he pile up a mass of earth, which he digs out, upon the public road.
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§ 101. Of the private right of fishing in a public stream
§ 216, part 2, Jus Nat.
§ 88.
If the right of fishing is subjected to private ownership, the river itself nevertheless remains public. For the uses of a public river, among which is the right of fishing, are such that one can exist without the other. Therefore nothing prevents any use from becoming private, while the rest remain common. Therefore, since the right of fishing can be subject to ownership, if the right of fishing is subjected to private ownership, it by no means follows from this that the river itself is under private ownership. Therefore if that alone is subjected to private ownership, the river itself remains public.
§ 88.
§ 216, part 2, Jus Nat.
§ 88.
Fish in a river are properly common property; but the right of catching them, that is, the right of fishing, can be subjected to ownership, and naturally it seems to have been acquired by the people with the river itself. And for this reason the right of fishing passes to the state just as does the river, and on this account fishing is related to the use of the river, just as is the taking of birds flying in the air to the use of the air, or, if it is done in the fields, you may relate it to the use of the fields. Therefore nothing prevents rivers from becoming public property, and the right of fishing remaining common, so that any one, even a foreigner, may fish in a public river. And in like manner the right of fishing can become private, the river itself remaining public. Fish of themselves do not belong to a river, just as birds do not belong to the air in which they fly, or to the fields on which they alight, nor do wild animals belong to the forests in which they wander about. Therefore the use of the river as such must be distinguished from that which it can have as regards things capable of appropriation in it.
§ 102. Of sovereignty and eminent domain over public property
§ 42, part 8, Jus Nat.
§ 35, part 8, Jus Nat.
§ 175, part 2, Jus Nat.
Sovereignty over public places and eminent domain over public property belong to the ruler of a state. Civil sovereignty which the ruler of a state exercises is properly the right to actions of individuals of the people, so far as concerns the common or public property of the state. And since the people have made a territory their own by taking possession of it, sovereignty must be exercised in every part of it, and in every place,
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whether the ownership has passed over into private hands or whether it has remained public. Therefore sovereignty belongs to the ruler of the state in every place which is to be considered as public property. Which was the first point.
§ 92.
But that eminent domain holds over public property is plain from the same argument by which we have proved that point concerning the property of a corporation. Which was the second point.
§ 99.
§ 111, part 8, Jus Nat.
§ 99.
§ 88.
§ 166, part 8, Jus Nat.
§ 495, part 1, Jus Nat.
So the ruler of the state has sovereignty over the rivers and public roads, in desert places, or those not yet under cultivation, although ownership of those places is with the people, and it is not held to have been transferred to the ruler of the state. For sovereignty always remains distinct from ownership nor are these two rights ever necessarily of themselves united. And so although ownership of public property may belong to the ruler of the state, nevertheless the sovereignty over public places does not therefore belong to him, which of itself is extended to all places, so far as in them individuals can do certain acts, the right to do which belongs to the one having sovereignty. But inasmuch as eminent domain is contained in this sovereignty itself as a potential part thereof, so it is not to be confused with the ownership of public property transferred from the people to the ruler of the state, and the things which by force of this he can do are rightly to be distinguished from those which are done by force of eminent domain, a thing which must be kept in mind, if you wish accurately to prove details and get at the true reasons for all those things which the ruler of the state does as concerns public property. For we desire that those things be drawn from the source whence they flow. But public rivers and public roads may be looked at from two standpoints, either in so far as men can do in them the things which have no bearing at all upon their use, for example, if any one should kill another in the river or on the road, or assault him with blows, or speak ill of him; or in so far as they serve a definite use, for example, sailing on the river, or driving cattle to it to be watered or washed, or walking or driving on the public road. With respect to the former, public rivers and public roads are properly speaking public places; but with respect to the latter, they are public property. And therefore over these the ruler of the state has sovereignty as over public places and the public places
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belong to his territory. Since this distinction is based on the concepts of property and sovereignty, by force of what has just been said, it is properly made.
§ 103. Of the effect of eminent domain over public property
§ 102.
§ 111, part 8, Jus Nat.
Since eminent domain over public property belongs to the ruler of the state, since, moreover, by force of eminent domain disposition is made of property for the public welfare in case of necessity, the ruler of the state for the public welfare in case of necessity can dispose of public property, as shall seem best to him.
§§ 98, 99.
So by power of eminent domain he can connect two navigable rivers by an artificial channel for the aid of commerce, or even direct the waters of one stream into another, to make it navigable, even if there should be some injury to the common use. And hence will be clearer the difference which exists between eminent domain over public property and ownership of the same, which is either with the people or transferred to the ruler of the state.
§ 104. Of the passing of civil laws concerning the use of public property and that of a corporation
§ 977, part 8, Jus Nat.
§ 978.
§§ 94, 99, and § 170, part 1, Phil. Pract. Univ.
The ruler of the state can pass laws concerning the use of public property and that of a corporation. For by civil law the ruler of a state can make obligatory or forbidden what is allowed by nature; moreover he can make a perfect obligation out of that which before was imperfect, as is best for the purpose of the state, and if anything can be done in several ways, he can direct that it be done in one way or another. Therefore, since the use of public property and that of a corporation is allowed by nature, and since that use can be exercised in several ways, as is plainly proved before, the ruler of a state can make laws concerning the use of public property and that of a corporation, by which a thing formerly allowed may be made forbidden or obligatory, or by which an imperfect obligation is made perfect and by which the use of that property is limited in a certain manner.
§ 5, part 8, Jus Nat.
So he can pass laws concerning fishing in rivers, for example, that common fishing should be forbidden in a certain part of a river, or
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that the smaller fish shall not be taken, and that one may not fish with nets, except such as allow the escape of fish not of a proper size, or that fishing should be forbidden at one time and allowed at another. Since still other methods may be given, by which civil laws may be made out of natural laws and which we have proved in the natural theory of the civil laws, besides those to which we have called attention in the discussion, it is plainly evident that very many laws can be passed, not only concerning fishing, but likewise concerning every use of any public property and that of a corporation. But while we speak of things public and those of a corporation, we are tarrying among generalities, and do not descend to particulars, which very often can be inferred from them by way of corollary, or without much difficulty be derived by proof. If we attempted to descend to public property and that of a corporation in detail, the treatment would be more extensive than the present plan demands. Likewise it ought not to seem strange, if we extend the legislative power to the use of things common or of those of the whole nation, or of some particular corporation. For that deals also with private ownership, or the use of private property. For all the actions of subjects are under the control of the civil power, so far as they are referable in any way to the purpose of the state, and laws are only the means through which the purpose of the state is attained, consequently they prescribe how subjects ought to direct their actions to the purpose of the state. And so it would be absurd, if any one should desire to remove the use of public property or that of a corporation from the legislative power, so that the free abuse of it would be left to any one, or that in its use the purpose of the state should be opposed.
§ 105. Of the prohibition of the proper use of public property
§ 96.
No one of the people can be legally prohibited from using public property in a proper manner. This is shown in the same manner in which we have proved the same point in regard to the use of the property of a corporation.
Note, § 98.
§ 112, part 2, and § 5, part 8, Jus Nat.
So no one can be prohibited from going or driving on the public road or from sailing on a public river. We have already remarked above that public property can be made the property of a corporation, since even the whole people is a sort of a corporation.
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§ 106. Of a river separating two territories
§ 178, part 2, Jus Nat.
§ 85.
If a river separates two territories, the ownership and sovereignty over the river will belong to that nation which has first taken possession of it; ownership and sovereignty of either nation extend from either side to the middle of the river, if they take possession at the same time, and in a doubtful case this is presumed. But if the matter is decided by agreement, they must stand by it. For ownership is originally acquired by occupation, and if a certain nation occupies an uninhabited territory, it has sovereignty over it as soon as it occupies it. If then a river separates two territories and one nation gets possession of it first, ownership and sovereignty over the whole river belong to that nation. Which was the first point.
§§ 78, 81, part 1, Jus Nat.
If two nations occupy at the same time the territories which a river separates, since the use of rivers serves the advantages of each, they are understood to have occupied this also at the same time. And therefore, since by nature the right of each is equal, the ownership and sovereignty of either nation extend from either side to the middle of the stream, as shown above. Which was the second point.
§ 94, part 1, Jus Nat., and § 2.
If it does not appear whether one nation has taken possession of the river before the other, or whether anything has been laid down by stipulations concerning the ownership and sovereignty over the river, that is presumed which is the most natural. Therefore, since nature gives precedence to no nation over another, moreover since by natural equity it is especially fitting that ownership and sovereignty reach from either side just to the middle, this is presumed in this doubtful case. Which was the third point.
§ 789, part 2, Jus Nat.
Finally, since agreements must be observed, whatever shall have been determined by agreements concerning the ownership and sovereignty over a river must be observed. Which was the fourth point.
§23.
Since our times are very far away from the first occupation, the law of nations existing at the present time will scarcely be anything other than the stipulative. To be sure a case can be conceived, in which nations dwelling on either side of the same river have left the river in its original common holding, or have made it the common property of either nation, but since either case is scarcely consistent with
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sovereignty, as is easily understood, it will hardly be possible, and is easily considered as morally impossible. It more usually happens that a river is without ownership than without sovereignty, and positive common holding so far as regards the use of the river more usually happens than joint exercise of sovereignty. But since in either case very troublesome difficulties easily arise, the nations themselves take pains to make definite arrangements by agreements with each other. But it is evident, whether a river belongs to a single nation or the ownership and sovereignty of either extend from either side to the middle of it, that concerning the use of the river and the exercise of sovereignty over it various arrangements can be made, which then become matters of stipulative law.
§ 107. Of the abandoned channel of a river
§ 372, part 2, Jus Nat.
If the river which separates two territories shall have left its channel and broken through another way, a nation retains the ownership and sovereignty over the channel which it had in the river, and the ownership and sovereignty extend from either side to the middle of the channel, if they extended to the middle line of the river. For the natural channel abandoned by a river flowing in another direction belongs to the one by whom it had been before occupied. Therefore if the ownership and sovereignty in a river which separates two territories belonged to one nation, when the channel is abandoned by the river, the ownership and sovereignty of this nation remains. Which was the first point.
And in the same manner it is evident that the ownership and sovereignty of either nation ought to extend to the middle line of the channel, if before they extended to the middle line of the river. Which was the second point.
De Jure Belli ac Pacis, lib. 2, c. 3, § 17.
Grotius gives this reason, that the intention of the people must be considered to have been that if the river shall cease to be, then each should hold what it had held. But it does not seem to be necessary for us to seek a reason far away. For since a river consists of the channel and flowing water, the nation has such a right in the channel as it has in the river. Therefore, even if the river flowing in another direction should leave the whole channel and consequently should vanish so that there would be no river any longer where it had been before, nevertheless
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there is no reason why this should destroy the right in the part which still exists. Indeed if a building burns, your right in the foundation is not taken away by its destruction, but you retain ownership in it. The case is certainly the same if a river abandons its entire bed.
§ 108. Of territories having the river as their boundary
§ 363, part 2, Jus Nat.
If the territories separated by a river have the river as their boundary, the nations on either side have the right of alluvium.6 This is plain from the same proof which we have given in regard to land having a river as boundary.
§ 585, part 2, Jus Nat.
§§ 357, 358, part 2, Jus Nat.
Of course the land which is added by alluvium to either territory belongs to the territory to which it is added. The loss, which the nation dwelling on the opposite bank suffers, arises from the destruction of its own property, nor can it be said that the nation which has the right of alluvium is made the richer at the expense of the other, a thing which is opposed to the law of nature. See what we have noted concerning that point.
§ 109. Whether any change is made in the right in a river by alluvium
§ 108.
§ 362, part 2, Jus Nat.
Since nations whose territories have the river as their boundary have the right of alluvium, the right which they have in the river is not changed by alluvium; since the river, as the natural boundary separating their territories, does not disappear but remains, on which ever side the alluvium increases or decreases the territory. Therefore, if a river shall have belonged wholly to one nation, it retains the entire ownership and sovereignty after the alluvium is made; but if the ownership and sovereignty extend to the middle line from either side, they still will extend to the middle line of the river after the alluvium is made.
In a doubtful case territories which are separated by some river are presumed to have the river as their boundary, since for marking their boundaries nothing is better than that which is not easily crossed. And
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those things which we have said of rivers are likewise understood of mountains which divide territories, but not with the same pertinence of forests, especially open ones, where the matter must be determined by agreements.
§ 110. Of the building of a bridge on a river, belonging half and half to neighbouring nations
§ 120, part 2, Jus Nat.
If a river separating two territories belongs half and half to the nations dwelling on either side of the river, a bridge cannot be built upon the river without the consent of each nation, for since the owner by the right which he has in the property excludes all others who have not the right of ownership in it, a nation which has ownership only of half of a river, the other half of which belongs to the neighbouring nation, cannot build a bridge. If then a bridge is to be built upon the river, that cannot be done except with the consent of each nation.
The same is plain concerning any other thing which ought to be done in regard to the half which is understood to belong to the neighbouring nation, as e.g. the construction of a dam across the river for the purpose of building a mill.
§ 111. Of the right of anticipation in the use of public property or that of a corporation
§ 180, part 1, Phil. Pract. Univ.
If public property or that of a corporation does not admit of simultaneous use by all, he who is in fact using it cannot be deprived of this use by another, but the other ought to wait until the use shall have been ended. For if public property or that of a corporation does not admit of simultaneous use, it is impossible for all who have the right of use, to use the property at one and the same time. But he who is in fact using it is exercising his right. Therefore, since no man has the right of preventing another from using his own right, no one can prevent him from using it who is in fact enjoying the use; consequently although the right of using the thing belongs to one, never theless he ought to wait until the use of the other shall have been ended.
Thus if any one is in fact drawing water from a common well, which is the property of a corporation, or shall have been the first to start to draw it, you cannot put him away so as to draw it first yourself,
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but you must wait until he has drawn the water and made place for you. In like manner if any one is in fact fishing in a public river, you cannot prevent him from fishing in that place, but you ought to wait until he has ended his fishing, if you wish to fish in the same place.
§ 112. The same further considered
§ 111.
If public property or that of a corporation does not admit of a use except such as consists in consumption, that is, if the use consists in the taking of things which are consumed in the use, he who is in fact taking the thing or is starting first to take it, cannot be restrained from taking it. For if the use consists in the taking of things of the sort which are consumed in the use, it is impossible that several who have the right of using take the same thing. Therefore then, as appears before, he who in fact is taking the thing or is starting first to take it, cannot be restrained from taking it, so that you may take it.
§§ 35, 36, part 2, Jus Nat.
§ 88.
Thus if he who has the right of cutting timber in a forest ripe for cutting, is in fact cutting it, or is coming first to cut, you cannot prevent him from cutting this timber for the reason that you prefer to cut the same. The same thing is understood, if any one cuts grain with a sickle in a common meadow. The same law holds as in the original common holding. For the use of public property and of the property of a corporation, since it is common to the people as a whole and to the individuals of a corporation, imitates the use of things in the original common holding, nay, is in harmony with it.
§ 113. Laws and agreements to be made concerning the use and preservation of public property and that of a corporation
§ 9, part 8, Jus Nat.
§ 88 h.
§ 969, part 8, Jus Nat.
§ 813, part 8, Jus Nat.
The ruler of the state can pass laws concerning the use of public property and that of a corporation and concerning the preservation of the same, as far as this shall be to the advantage of the people or the corporation, and concerning the use of the property of a corporation and its preservation those who belong to the corporation can also arrange by agreements. For the use of public property pertains to the common good of the state, and since corporations belong to the state, the use of them also pertains
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to the good of the state. Therefore, since civil laws prescribe the means by which the good of the state is obtained, and legislative power belongs to the ruler of the state, the ruler of the state can make laws concerning the use of public property and that of a corporation. Which was the first point.
But since the use cannot continue unless the substance of the thing is preserved, it is thus plainly evident that the ruler of the state can pass laws concerning preservation of public property and that of a corporation. Which was the second point.
§ 495, part 1, Jus Nat., and § 88 h.
And because public property ought to serve the advantage of the whole state, and the property of a corporation the advantage of the corporation, such laws ought to be passed concerning the use of public property and that of the corporation as will be to the advantage of the people or of the corporation. Which was the third point.
§ 94.
§ 118, part 2, Jus Nat.
§ 698, part 3, Jus Nat.
§ 393, part 3, Jus Nat.
§ 788, part 3, Jus Nat.
Finally, since the use of the property of a corporation belongs to the corporation, moreover, since any one can dispose of his own property as he likes, those who belong to a corporation can agree together concerning the use of the property of the corporation, and that such use can be enjoyed, they can agree concerning the preservation of the same, and since they are not able to bind themselves one to the other except by a promise, they can enter into agreements. Which was the fourth point.
§ 532, part 8, Jus Nat.
§ 585, part 8, Jus Nat.
§ 966, part 8, Jus Nat.
Cap. 5, part 8, Jus Nat.
§§ 395, 982, part 8, Jus Nat.
In the particular case particular reasons are given why laws are to be passed, and of what sort, concerning the use and preservation of public property and of that of a corporation. But they are taken from general public law, which we have set forth in the eighth part of “The Law of Nature.” So it is plain that it ought to be the concern of the ruler of a state that each should be saved from the wrong of others. Therefore, if it is to be feared that in the use of public property or that of a corporation one may easily wrong another, the use must be limited by a law by which care is taken that wrong may not be done thereby, and a penalty sufficient for restraining a transgression of the law must be added to the same. Here those same points are to be observed which we have proved in general concerning the theory of civil law or the method of rendering civil laws effective in accordance with natural laws. In like manner the ruler of a state is also bound to care for a corporation for the future. Therefore he ought to provide
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lest anything may be done in the use at present which may injure the use in the future. If those who belong to the corporation at present should be negligent in preserving its property, they can be compelled by force to do those things which are necessary for the preservation of the thing and not to do those things which are detrimental to it. So if any one shall have been allowed to cut as great an amount of timber as he shall have desired in the forest ready to cut; for the sake of preserving the forests the ruler of the state can prescribe by law how much he may cut yearly and lay down those rules which are necessary for increasing the production of timber. Such things likewise could be determined by agreement provided only that all were sufficiently ready to do those things which are in harmony with natural equity and did not prefer their present advantage to the future welfare of posterity. Therefore civil laws ought to supplement the defect of the agreements.
§ 114. At whose expense the property of a corporation is to be preserved
§ 112, part 2, Jus Nat.
§ 489, part 8, Jus Nat.
§ 494, part 8, Jus Nat.
§ 94.
The property of the corporation is to be preserved at the expense of the corporation. Since a corporation is a number of men associated for a definite purpose, and therefore consists of individuals, the corporation continues even if those withdraw who now compose it and others take their places, consequently the use of property of a corporation belongs not only to present members but also to future members, so that as soon as any one comes into the corporation he has also the use. In order therefore that a property can have a use for future time also, the property must undoubtedly be preserved. Therefore, since it is plain of itself that a thing has to be preserved by the one who has the use and who cannot use the thing unless its substance is preserved, in order that its future use may not be prejudiced, the property of the corporation must be preserved at the expense of the corporation.
§ 977, part 8, Jus Nat., and § 26, part 4, Jus Nat.
The property of a corporation with respect to the entire state is considered as private property. Therefore since your private property has to be preserved at your expense so that you can have its use, and it would be absurd to pretend that it should be preserved at another’s expense, for example, the state’s, so also the property of a corporation
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is to be preserved at the expense of the corporation, nor can it be pretended that it should be preserved at the public expense of the entire people, or of any others who are outside of the corporation, unless there are adequate reasons why the benefit is sought by others, and if ever this shall have been necessary, the ruler of the state can change it to an absolute obligation.
§ 115. Of the repair of the property of a corporation
§ 114.
Since the property of a corporation is to be preserved at the expense of the corporation, moreover since it cannot be preserved, unless it is restored to a better condition, when that is necessary, property is to be repaired at the expense of the corporation.
For example, if a fountain in the market-place from which all who dwell in the city are allowed to draw water, is going to ruin with age, or some accident happens which renders it useless, it must be repaired at the common expense of the residents. And this is held to be done, if the municipal magistrate, who has charge of the property of the city, makes expenditures of those funds which the residents contribute for that purpose. But in the repair of the property of a corporation, the labour employed in it is also to be charged to the expense account. It is the same of course, whether those who belong to the corporation themselves perform the work, or whether they hire the services of others at a fixed price; for in the former case they save the expense to themselves.
§ 116. Of imposing taxes for the benefit of the property of a corporation
§ 114.
§ 115.
§ 159, part 1, Phil. Pract. Univ.
Since the property of a corporation is to be preserved and repaired at the expense of the corporation, the individuals who belong to the corporation ought to contribute proportionately to the preservation and repair of the property of the corporation, either ordinarily at a definite time or extraordinarily whenever the usual contribution shall not have been sufficient, consequently it is allowable to impose taxes for that purpose, and since what is contributed for that purpose must also be expended for the same, a thing which is evident of itself, those who control the property
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of a corporation are bound to render an account of the administration to the corporation or even to the ruler of the state.
§ 193, part 1, Phil. Pract. Univ.
§ 395, part 8, Jus Nat.
It is better for the individuals to contribute a moderate amount at a definite time rather than to contribute much in case of emergency. Taxes, therefore, imposed for the benefit of the property of a corporation are in accord with perfective law.7 Moreover, it is quite evident with regard to the whole state that these taxes must be looked at as if they were private wealth, over which the entire people, consequently the ruler of the city, has no right, except in so far as he ought to take care that the money be rightly managed.
§ 117. At whose expense the public property is to be preserved and repaired
§ 98.
§ 114.
§ 115.
Public property is to be preserved and repaired at public expense. Since the use of public property belongs generally to all who are of the people, in like manner it is plain that the property must be preserved at the public expense, and it follows directly from this that public property is to be repaired also at public expense, a thing which we have proved of the property of a corporation, and this we have taken from that source.
Of course the one who has the use of a thing is also bound to preserve and repair it so that he can have the use.
§ 118. Of taxes to be imposed for the benefit of public property
§ 117.
§§ 777, 778, part 8, Jus Nat.
§ 934, part 8, Jus Nat.
Since public property is preserved and repaired at public expense, the entire people ought to contribute to the preservation and repair of public property, as shall seem best to the ruler of the state, and what is contributed to that end must also be expended for that purpose, nay more, the ruler of the state, for the purpose of lessening the taxes, may exact from the subjects the labours necessary for preservation.
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It is usually the duty of the ruler of the state to provide for those things that pertain to the public good. If then some defect is found therein, it must be attributed to his negligence. But if he expends for another purpose the things which are contributed for the sake of preserving and repairing public property, that is to be counted as bad management. If contributions are made simply for the benefit of the public, in order of course that the necessary expenses for proper management of the state may not be lacking, it is quite plain that the expenses are to be borne from the public treasury.
§ 119. Of the paying of the impost by those travelling on the public road
§ 118.
§ 88.
§ 929, part 8, Jus Nat.
§ 934, part 8, Jus Nat.
Since the people in general ought to contribute to the preservation and repair of public property, moreover, since public roads are public property, and since he who in fact enjoys the use should be held especially to contribute, in order that he may be able to enjoy it, and since that which is paid as toll is called impost; it is allowable to exact an impost from those who travel on the public road, which impost, since it must be expended for that purpose for which it was imposed, must be expended upon the preservation and repair of the public roads.
Note, § 934, part 8, Jus Nat.
Note, § 118.
See those things which we have discussed elsewhere concerning that matter. Here also is to be borne in mind what we have already noted with reference to the preceding proposition.
§ 120. Of the use of the sea
The use of the open sea consists in navigation and fishing, in occupation of things found on the beach near the shores, as shells, gems and in some places amber, and in extraction of salt from the sea-water. This is sufficiently plain from experience, so that it does not need further proof.
The former use of the sea is absolute, but the latter contingent. And he who has either the absolute or contingent use can exercise it without impairment of the substance.
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§ 121. Whether it is allowable to subject the sea to private ownership
§ 120.
§ 195, part 2, Jus Nat.
§ 201, part 2, Jus Nat.
§ 199, part 2, Jus Nat.
Since the use of the open sea consists in navigating and fishing, and because you navigate on the sea or fish in it, you do not therefore interfere with the possibility of another navigating or fishing, if he needs to navigate or fish; the open sea is a thing of unlimited use, consequently since no one is able to acquire ownership in property absolutely natural, subject to unlimited use, and no one is allowed to bring it under his ownership, no nation either is allowed to bring under its ownership the open sea, even if that were possible, nor can it acquire ownership of it without contravention of natural law. And the same thing in like manner is understood of several nations which cannot jointly subject the open sea to their ownership, consequently no nation is able to subject any great part of the ocean or open sea to its ownership. And since property is subjected to ownership for the sake of use, no nation can subject to its ownership the right of navigating and fishing in the open sea.
§ 156, part 1, Phil. Pract. Univ.
Grotius rightly calls this a moral reason, because it is derived from justice, which is a moral power, and is opposed to the physical power of action, which indeed the former presupposes, but which, on the other hand, is not presupposed in the latter, since you are able to do many things which nevertheless you are not allowed to do. So theft is an act physically possible, a thing which is unknown to none, nevertheless it is not morally possible, because one is not allowed to commit theft.
§ 122. Whether any one can forbid navigation and fishing in the open sea
§ 121.
Since the right of navigating and fishing in the open sea may be subjected to the ownership of no one, no one has the right of preventing another from navigating and fishing in the open sea, consequently it is allowable for any nation as it pleases to navigate and fish.
§ 119, part 2, Jus Nat.
Of course each right ought to remain common for the entire human race, so that any man may use either, whenever and as often as he pleases. It is the right of an owner to exclude others from that right
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which he himself enjoys. But he who does not have an especial right cannot exclude others from it, much less from a common right.
§ 123. Whether it is a wrong to restrain one from the use
§ 122.
§ 239, part 1, Phil. Pract. Univ.
§ 859, part 1, Jus Nat.
If one nation seeks to restrain another from the use of navigating and fishing in the open sea, it does a wrong to such other. For every nation is allowed as it pleases to navigate and fish in the open sea. If then some nation should seek to restrain another nation from the use of navigating and fishing, this is contrary to the right of such nation. Therefore, since he does a wrong to another, who does anything which is contrary to the right of the other, if any nation seeks to restrain another from the use of navigating and fishing in the open sea, it does a wrong to the other.
Nor do we draw our conclusions from those things which either have been done in the past, or to-day are done. For the law of nature has a reason within itself, nor are the acts of nations a rule of law, but rather is the law a rule for the acts.
§ 124. Whether that use gives just cause of war
§ 123.
§ 1109, part 1, Jus Nat.
Since a nation which desires to restrain another from the use of navigating or fishing in the sea, does it a wrong, and since a wrong is a just cause of war, if any nation desires to restrain another from the use of navigating and fishing in the open sea, the latter nation has just cause of war.
§ 1104, part 1, Jus Nat.
Of course the nation which wages war defends its right against another, which is striving to take that right from it without its consent. Therefore by nature the right of war belongs to the former against the latter.
§ 125. On whose part then a war is unjust
§ 123.
§ 1109, part 1, Jus Nat.
§ 1110, part 1, Jus Nat.
On the other hand, because a nation, which does not desire to allow another nation free use of navigating and fishing in the open sea, does it a wrong, if by force of arms the nation seeks to restrain the other from this use, it does not have just cause of war. Therefore, since a war is unjust the cause of which is not just but unjust, if any nation desires to restrain
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another by force of arms from the use of navigating and fishing in the open sea, the war which it brings upon the other is unjust.
§ 10.
§ 12.
One acts contrary to the right of nations, who seeks by force of arms to claim for himself the right to navigate and fish in the open sea to the exclusion of other nations, since, as it is to the advantage of nations to protect this right, it is allowable for any nations to oppose that action, nay more, since nations are understood to have united into a supreme state, they are bound by nature to protect the same. The laws of nations provide for the common welfare, and so he who injures that commits a wrong against all nations.
§ 126. Of stipulative right in the use of the sea
§ 122.
§ 103, part 3, Jus Nat.
§ 118, part 3, Jus Nat.
One nation can agree with another not to navigate or fish in the sea, or within certain limits in the open sea. For since the right belongs to any nation to navigate or fish in the open sea, wherever it pleases, if any nation agrees with another nation that the latter shall not navigate or fish in the sea, or within certain limits in the open sea, the latter renounces its right in favour of the former. Therefore, since by nature any one can renounce his special right, one nation can agree with another not to navigate or fish in the sea, or within certain limits in the open sea.
§ 23.
§ 76.
§ 78.
§ 78.
§ 103, part 3, Jus Nat., and § 660, part 1, Phil. Pract. Univ.
§ 104, part 3, Jus Nat.
The exclusion therefore of any nation from free use of navigation or fishing in the open sea can be only a matter of stipulative right; when such agreements are lacking, exclusion has no place. Since navigation and fishing in the sea are matters of pure will, and the right itself one of pure power, moreover since rights of pure power cannot be barred by prescription, even if you shall have used them a very long time ago, or even never before; one nation cannot by prescription bar the right of another to navigate or fish in the sea, although the latter has never before navigated or fished in the sea. But the situation is different if one nation shall have prevented another from navigating or fishing, or compelled the other to refrain therefrom, and there has been compliance with the prohibition or order, with adequate evidence of consent. For the loss of the right rests in fact on tacit agreement, by which the same is tacitly renounced in favour of the one prohibiting or ordering, and consequently the nation, which obeys the prohibition or order,
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binds itself to the one prohibiting or ordering, that it will not seek to use the right against the other, and the latter acquires the right not to allow it to use the right against itself.
§ 127. Whether the sea is of itself subject to occupation
§ 175, part 2, Jus Nat.
§ 121, part 2, Jus Nat.
§ 136, part 2, Jus Nat.
§ 120.
The open sea is of itself not subject to occupation. For let us suppose that the open sea is occupied by any nation, consequently that it can be subjected to its ownership. Since the right belongs to an owner to restrain any one not the owner from every act permitted by virtue of ownership, and not to allow that any other one may do anything without his consent which is allowable for him to do by virtue of ownership, and thus use his property; a nation which has occupied the open sea, or even a great part of it, is understood not to allow any other nation, or any one from any other nation, to navigate or fish at his will in the open sea or in a great part of it. But it is impossible to compel all nations, or any one from another nation, not to do whatever he wishes to, without the consent of the other, anywhere in the sea; a thing which no one can call in question, provided only he considers everything with sufficient care. Therefore it is inconsistent that any nation should have ownership in the sea, consequently the open sea is not among those things, the ownership of which can be acquired by occupation, therefore of itself it is not capable of occupation.
§ 121.
§ 120.
It is absurd for any one to claim a right for himself which he cannot defend. Moreover, this reason why the sea does not belong to the category of things capable of occupation is a physical reason, not to be confused with the moral reason which prevents occupation, even if it were physically possible, of which we have spoken before. But do not persuade yourself that a nation can protect its ownership of the sea by the aid of a fleet or by forbidding descent to the sea from the shores adjacent to your territory; for it is not possible that all nations in general and any one from any nation anywhere can be restrained from navigating the sea or fishing in it anywhere. To act with an armed force against one nation or another, or to prevent access to the sea anywhere on the sea or at one place, is not the same as to exclude all nations in general from the use of the sea. The sea cannot be inhabited
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as is the land; the case is quite different, in that the land can be divided among nations and can all become subject to occupation, nor does the sea have uses of the same sort as the land for individual men, of which it is impossible to deprive them. The use of the sea is restricted to very narrow limits, nor do all nations, much less single individuals, need it, or if they should need it, nevertheless they are compelled for more than one reason to refrain from it. Therefore the reasoning from land to sea is not valid.
§ 128. How far certain parts of the sea are subject to occupation
§§ 198, 199, part 2, Jus Nat.
§ 120, part 2, Jus Nat.
Parts of the sea can be occupied by nations which dwell near it, so far as they are able to protect the same. This is understood of bays and straits. For the use in the parts of the sea of this sort near the shores, which consists in fishing and collection of things produced in the sea, and not in navigation alone, is not inexhaustible, nor is the use which consists in navigation always innocent, since the sea furnishes a means of protection to maritime countries, and therefore it is to the advantage of the inhabitants that no one should be allowed to remain there with armed ships. Therefore there is no moral reason to prevent them from being occupied. And since others can be excluded from this same use, and can be forbidden to remain there, there is according to the hypothesis no physical reason that prevents them from being subjected to ownership. Since, therefore, for the sake of advantage nations have occupied portions of the earth, just as individuals have occupied farms, for the same reason it cannot be doubted that nations dwelling on the shores of the sea can occupy portions of the sea, so far as they can protect their ownership over the same. Which was the first proposition.
It is plain for the same reason that the same thing is true concerning bays and straits. Which was the second proposition.
De Jure Belli ac Pacis, lib. 2, c. 3, § 8.
§ 180, part 2, Jus Nat.
§ 106.
Bays are recesses hollowed out in the earth like the backwaters of a river in a private estate, and a strait is a narrow place in the sea. Hence the bay is open to the high sea, from which it enters the land, but it has no exit; but a strait is open at either end. Grotius restricts the occupation of parts of the sea to the distance which can be seen from the
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lands which nations have occupied. But no reason for this limitation is given, and it seems purely arbitrary. For the reason of the occupation is the advantage of the one occupying, so far as that is not limited by the necessary use of others, and it is absurd to desire to occupy more than can be protected, as will be perfectly plain from proof of the present proposition. How far the sea is subject to occupation, or can be subjected to ownership, presents no difficulty at all, provided only you should consider the matter without prejudice and partisan feeling. For there are no other reasons than those which are to be considered in the occupation of parts of the land by nations. If the sea could be inhabited as the land is, there would be no difference at all between occupation of tracts of the sea and of the land. And occupation of portions of the sea, as restricted in the proposition above, is altogether the same as occupation of rivers, so that, if any one presumes to deny that the sea can be thus occupied, he ought not to allow even the occupation of rivers. And hence Grotius says pertinently, in the passage cited, that bays and straits can be occupied as in the case of rivers. Hence two peoples who have a bay and a strait between them, can extend their ownership and sovereignty to its middle line, or in the bay according to their proportional share of the territory.
§ 129. Whether sovereignty over parts of the sea may be acquired at the same time
§ 85.
§ 128.
Since nations occupying unclaimed lands acquire sovereignty over them together with ownership, moreover since certain parts of the sea can be occupied the same as lands, if any nation occupies a certain part of the sea, it acquires sovereignty over it together with ownership.
§ 121, part 2, Jus Nat.
§§ 4, 32, part 8, Jus Nat.
The right of restraining others from use of the sea cannot be attributed to the civil sovereignty, for this arises from ownership and is not comprehensible without it, although the civil sovereignty protects ownership, and consequently any rights arising from it.
§ 130. Whether those parts belong to the territory
§ 166, part 8, Jus Nat.
§ 129.
Because the places over which a nation, or the ruler of a state, has sovereignty belong to the territory of the state, moreover since a nation, or
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the ruler of a state, has sovereignty over the occupied parts of the sea, the occupied parts of the sea belong to the territory of that nation which has occupied them.
Of course the situation is the same here as in the case of rivers, which, not less than the lands, belong to the territory.
§ 131. What sort of a right in them belongs to the ruler of the state
§ 130.
§ 167, part 8, Jus Nat.
Since the occupied parts of the sea belong to the territory of that nation which has occupied them, such a right belongs to the ruler of the state in the occupied parts of the sea as he has in his territory, and consequently those who frequent such parts of the sea are subject to the same laws as those who inhabit the lands or spend time there, including foreigners who have been allowed to enter.
If any prince had sovereignty over the whole ocean or a great part of it, he would have the same right over the whole ocean or part of it, as he has over his territory. But to aspire to a right of this sort is undoubtedly a foolish ambition.
§ 132. Of laws imposed on the sea
§ 131.
§ 813, part 8, Jus Nat.
§ 812, part 8, Jus Nat.
§ 969, part 8, Jus Nat.
Since in the occupied parts of the sea the ruler of the state has such a right as he has in his own territory, moreover, since in his own territory legislative power belongs to him, so that he can pass such laws as shall seem advantageous to the state, the ruler of the state can pass laws for the occupied parts of the sea, such as seem best to pass for the advantage of the state.
Therefore he can pass laws not only concerning the use of the sea and those waters which appertain to it, but also concerning the actions of those who dwell in them for any reason or sail through them, whether they are subjects or foreigners. Nay more, laws can be passed for the sea which differ from those which are passed for the land, in regard to the same actions. So offences committed on the sea can be punished more severely than the same offences committed on land.
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§ 133. Whether those born on the sea have the right of native born
§ 6, part 8, Jus Nat.
§ 411, part 8, Jus Nat.
Those who are born of citizen parents either on the unoccupied sea, or an occupied part of it, are natives. For those who are citizens remain such, wherever they may live for the purpose of any business, consequently they do not lose the right of citizenship for the reason that they are spending time on the unoccupied sea or on an occupied part of it. Therefore, since a state is preserved through the children who are born of citizens, the children through their birth become members of the state, consequently citizens; and since therefore those are natives who are citizens of that region in which they dwell, those who are born of citizen parents either on the unoccupied sea, or on an occupied part of it, are natives.
§§ 411, 414, part 8, Jus Nat.
Here are to be reconsidered the things which we have elsewhere discussed. As of course a citizen does not lose his right as native born, because he is absent from the territory on account of some business; so he does not lose the right of sharing this same right with his children by their birth, and consequently even when absent from the territory in some other place he shares it with his children when born. If it shall have been decided otherwise by some statute of a people, that is merely a civil enactment and is contrary to natural law, which decrees from the very nature of a state that children have the status which their parents have. That controversies have arisen concerning that matter, means nothing else than that generally by starting from different points of view no decision is reached. Disorderly concepts become the causes both of mistakes and also of confusion.
§ 134. What naturalization is
Naturalization is the conferring of the right of a native upon an immigrant or foreigner. And he is said to be naturalized on whom the right of a native born is conferred. And so a naturalized citizen by a fiction of the law is considered as born of citizen parents, or native-born parents.
§§ 34, 42, part 8, Jus Nat.
So that illustrious astronomer Dominicus Cassini, an Italian by nationality, was naturalized in France, and his descendants are now natives, as though they derived descent from French parents. Of course when one has received the right of a native born, certain rights belong
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to him as a native which strangers or foreigners do not enjoy. And it is quite plain that it depends upon the will of the people, consequently on that of the ruler of the state, who has the right of the people, or exercises it, whether or not he desires to make a stranger, or a foreigner, a participant in those rights which depend upon native birth. Moreover, although the rights of the native born have been conferred by the free will of the people, or of him who has the right of the people, the method nevertheless of acquiring the same through native birth, as far as the law of nature protects rights of that sort, is considered natural, and nature assigns them to those who in accordance with the laws of the country are born with capacity for them. But it is an extraordinary method of acquirement, for the rights to be conferred upon any one contrary to law; in order that the law may be kept intact, it is assumed that one is born of citizen parents, who is not so born. And so the law is not annulled, but is replaced by a legal fiction.
§ 135. Of the obligation of a nation to care for its own self, and of the love of country
§ 2.
§ 4.
§ 607, part 1, Jus Nat.
§ 607, part 1, Jus Nat.
Every nation ought to care for its own self, and every person in a nation ought to care for his nation. For every nation represents a single person, and therefore to it are to be applied those things which by the law of nature are enjoined upon individuals, and in this the necessary law of nations consists. And so, since every person ought to care for his own self, every nation also ought to care for its own self. Which was the first point.
§ 5, part 8, Jus Nat.
§ 9, part 8, Jus Nat.
§ 28, part 8, Jus Nat.
§ 617, part 1, Jus Nat.
For if a state is established, consequently if a certain nation arises, individuals bind themselves to the whole because they wish to promote the common good, consequently the happiness of their nation. Therefore, since he cares for another who has the fixed and enduring desire to promote the other’s happiness, or to do everything that he can that the other may be happy or to prevent him from becoming unhappy, the individuals who belong to a nation ought to care for their nation. Which was the second point.
§ 634, Psych. Emp.
Each kind of love is referable to the love of country as to its source. For he who loves his country, gains pleasure from the happiness of his country, and this pleasure itself is a stimulus to deserve well of his country. But if individuals are devoted to the happiness of their
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nation, the nation loves itself and therefore also cares for itself, so that then it must be attributed to love of country if a nation cares for itself. Scarcely any nation exists which has not considered love of country an especially noble virtue, and therefore we see those are excessively praised by all, who have proved that they love their country, and their deeds are extolled, by which they have deserved well of their country.
§ 136. Of not harming one’s country
§ 135.
§ 617, part 1, Jus Nat.
§ 722, part 1, Jus Nat.
Since any one who belongs to a nation ought to love his nation, therefore ought to take every care that she should not be made unhappy, no one ought to do anything by which he can in any way injure his nation.
Those who harm their country deservedly incur the reprobation of all good men. For this is ingratitude, the basest vice. There is no one indeed who is not loaded with many blessings, because he lives in the state, consequently he owes it to his nation that he enjoys those blessings. Therefore we ought to have a feeling of gratitude toward our country; and on this account love of country is especially becoming to humanity, and, on the other hand, he seems devoid of human nature who hates his country.
§ 137. What domicile is
§ 377, part 2, Jus Nat.
Domicile is defined to be a fixed dwelling in some place with intention of remaining there permanently. In the native vernacular it is called die Behausung [the housing]. Since for establishing a domicile the intention is required of remaining permanently, a domicile is not understood to be fixed, unless the intention of remaining permanently is adequately declared, either expressly or impliedly, therefore one does not have domicile in a place where he lives for the purpose of some temporary business. Nevertheless, since any one is allowed to change his intention as long as he does nothing contrary to the right of another, a domicile can be changed, that is, it is not of itself unchangeable.
So an ambassador, although he lives for many, nay, very many, years with his family at some court, and possesses his own home in the city, does not nevertheless on this account have a domicile there. Likewise, he who for the purpose of trade dwells anywhere for a long time does not nevertheless have a domicile there, but remains a foreigner.
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§ 138. Of natural and acquired domicile
Natural domicile is defined as that which any one acquires by birth, in the place where his father has domicile. That is called acquired domicile which any one has established for himself of his own will. Therefore any one is supposed to retain his natural domicile as long as he has established none for himself by his own will, or has not abandoned it.
§ 139. Of vagabonds
§ 137.
§ 138.
A vagabond is defined as one who has no domicile anywhere. And so vagabonds live now in one place, now in another, nevertheless have no intention of remaining anywhere permanently. However, since a person is supposed to retain his natural domicile as long as he has established none for himself by his own will, vagabonds also are usually supposed to retain their natural domicile. But since nothing prevents any one from leaving his natural domicile and from being able to have the intention of remaining permanently in no particular place, vagabonds do not retain their natural domicile, if they leave it with the intention of remaining permanently in no particular place.
So swindlers, thieves, gamblers, actors, wandering doctors, and beggars are usually classed as vagabonds. Thence it happens that to the word vagabonds, in German, specifically Landstreicher [land-rovers] or Landläuffer [land-runners], some disgraceful significance usually attaches. Nevertheless there is no reason why even those who live an honourable kind of life, may not now and then be vagabonds. Indeed the Apostles, who established nowhere a domicile for themselves, were vagabonds. Likewise for the sake of trade a merchant can live now in one place, now in another, and have a domicile nowhere; then he is therefore enumerated among the vagabonds.
§ 140. What a native country is
A native country is defined as a place, namely, a land or city, in which one’s parents have a domicile, when one is born, the reference being to the nation or some particular corporation of a nation, to which the land or city belongs. In the native vernacular, we say with the broader meaning das Vaterland [Fatherland], in the narrower die Vaterstadt [Father-city], as
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the land or city in which our fathers dwelt from whom we have derived our stock. Moreover, the place of birth, which is the place in which we have been born, differs from native country. When any one is born in his native country, a thing which usually happens, place of birth is synonymous with native country especially in the stricter significance, but if any one is born on a journey or in a foreign land, where his parents are living on account of some business, his native country differs from his place of birth. It is to be noted besides that the place of birth is to be considered without reference to the nation to which he belongs, and therefore it gives no right to one born in that place.
It is not without reason that the native land is discussed in the law of nations, since on it depend certain rights, which people do not enjoy unless they have this native land. Therefore, since these rights belong to any one because he is born of parents who have a domicile either in this territory or in this city or in this district, this is the reason why the term “native country” has a broader and a narrower meaning. Moreover, since those rights are established by the will of human beings, although they are in harmony with natural law, they are not natural rights but simply positive rights, and therefore they are not necessary rights nor are they the same among all nations. Indeed there is no reason why they should exist in any nation. Moreover, since the place of birth confers no right, of itself it deserves no attention at all in the law of nations, except in so far as it is considered a native country through a caprice of speech. In a broader sense Silesia is my native country, in the stricter, Breslau, the chief city of Silesia; from this I am styled Breslauer and Silesian, or Breslauer-Silesian and I feel in myself a certain love of my native country as natural, by force of which the advantages, as well as the disadvantages, which come to it, affect my feelings. Likewise he who is born of parents who have their domicile in London in England, is called a Londoner and an Englishman, even if his parents at the time of his birth have been living in some place outside of England, for example, if they were in Germany on account of military service or if the father was performing the duty of an ambassador in the court of the most Christian King.8
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§ 141. Of the children of vagabonds
§ 140.
§ 139.
Since a native country is a place where the parents have domicile at the time of one’s birth, moreover, since vagabonds have no domicile anywhere, he who is born of parents who are vagabonds has no native country, except so far as vagabonds are supposed to have retained their natural domicile, consequently the native country of the parents is considered their native country also.
So those who are born of Gipsies have no native country, just as their parents do not.
§ 142. Of what sort the love of country is
§ 140.
§ 655, Psych. Emp.
Since the native country has reference to the nation or to a particular corporation of the nation, love of country (for we love even inanimate things) implies love of the nation or of some definite corporation of the nation.
§ 657, Psych. Emp.
We love inanimate things in so far as we receive pleasure from them, or the things which are innate in them or appertain to them. But these are such things as conduce to the advantage of people and promote their happiness. Therefore love of country has reference indirectly to those to whom it is beneficial if a territory and the cities in it abound in every sort of advantage. And consequently it happens that the term “fatherland” seems especially to be used of people, and not of the land.
§ 143. Whether love of country is a part of natural law
§ 142.
§ 606, part 1, Jus Nat.
Since love of country involves love of a nation or of some definite corporation in a nation, consequently of the people living in it, moreover, since every one ought to care for his own nation, and therefore love it, every one ought likewise to love his native country.
§ 135.
Love of country and love of the people thought of in general as living in the country cannot be separated the one from the other. Therefore, since love of one’s nation is a part of natural law, love of country also is a part of natural law. And therefore he offends against the law of nature who does not love his country, much more he who hates it.
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§ 144. Of the immutability of one’s country
§ 140.
Since your native country depends upon birth, moreover, since what has been done cannot be undone, your native country remains your native country, even if you establish your domicile outside of it, or abandon it, or even if you are driven out of it.
So England or France remains the native country of an Englishman or a Frenchman, even if he has established a domicile for himself outside of England or France, intending never to return to England or France. And although those born of French parents in Germany or Holland are still called French, because they derive their stock from a Frenchman; nevertheless their native country in the narrower sense is Germany or Holland, or the city in which they were born. Of course one must determine whether the name of Frenchman is applied to any one from his native land, or from his ancestors and parents, from whom he takes his origin. The same is understood of the Jews. Therefore in German idiom, which is well suited to express all ideas, we say Deutsche Juden [German Jews], or Polnische Juden [Polish Jews], according as they have Germany or Poland as a native country. And in the same manner of Frenchmen born in Germany or in Holland, we can say Deutsche [German] or Holländische Franzosen [Dutch Frenchmen].
§ 145. Of exile
§ 589, part 8, Jus Nat.
He is called an exile, who is driven out of the city or land where he has a domicile, or is compelled to depart without the stigma of disgrace. In our native vernacular he is said to be ein Vertriebener [banished], and ein Exulante [exile]. Since any right can be taken away by way of punishment, exile also can be a penalty. Exile is divided into voluntary, if one for the purpose of escaping a penalty or disaster departs of his own accord from the place where he has domicile, and involuntary, if he is compelled to depart by the decree of a judge or order of a ruler. In the former case, we say in the native vernacular, er sey flüchtig worden [he has] or er habe müssen flüchtig werden [had to become a fugitive]. If any one has a domicile in his native country, exile is a banishment from his native country, or a deprivation of the soil of his native country, and therefore
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an exile is one who is driven out of his native land, or deprived of the soil of his native land.
Cicero, in his “Pro Domo,” says, What is an exile? the name itself is indicative of disaster, not of disgrace.9 And therefore in the definition of exile we have taken away its stigma of disgrace. It is not now our purpose to describe more fully anything in the customs of the Romans. It is rather our purpose and desire that our notions should be adapted to our own custom, and be more universal and distinguishable from special peculiarities of certain peoples. In accordance with the custom of the Romans he was called an exile who was driven out of his native country, since a large number of foreigners did not, as among us, establish domiciles for themselves wherever they pleased. Among the Romans those went into exile who desired to escape some punishment, or even such as were not able to pay a fine, and it was necessary that those should depart who were forbidden water and fire, upon whom exile from home was thus imposed. But although even among us it may happen that exile is chosen instead of capital punishment or disgrace, nevertheless very often exile is accustomed to be inflicted; for example, when those are driven from the land, where they have domicile, who are unwilling to change their religion, or who hold to opinions not approved, or are thought dangerous to the magistracy, nay more, from any other cause whatsoever, either just or unjust. Indeed, some also go into exile on account of disaster of the times or adverse fortune which they experience, as on account of the conflagrations of war, unendurable famine or extreme poverty, into which they have fallen by some sad accident.
§ 146. Of the limitation of involuntary exile
§ 145.
§ 811, part 8, Jus Nat.
§§ 636, 833, part 8, Jus Nat.
§ 842, part 8, Jus Nat.
Since involuntary exile is imposed by decree of a judge, or by order of a ruler, even by way of penalty, moreover, since it belongs to the ruler to decide on those things which seem to him best to do for the public good and to determine the penalties from existing circumstances, and the
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right belongs to him likewise to abate and remit penalties, involuntary exile can be restricted to a definite place, both as regards the place from which he is bound to depart, and that in which he is bound to dwell as exile, and to a definite time.
§ 86, part 8, Jus Nat.
§ 1043, part 8, Jus Nat.
Thus exile may be inflicted for a period of ten years. Any one may be expelled from a city and its territory, or from a certain province. He may be compelled to be an exile in some remote province, or in some place a certain distance removed from the city. Among the English they are sent to the East Indies, among the Russians into Siberia. Here the will of the ruler controls, because public safety, the supreme law of the state, governs. Therefore these are merely civil questions, to be determined from those points which we have proved concerning the theory of civil laws in the eighth part of “The Law of Nature.” In the present case to be sure the order of the ruler makes the law, and it has the force of a statute as regards the person on whom exile is inflicted. It makes no difference that exile can be inflicted even without a just cause. For there are indeed civil laws that are unjust and unfair, because they have not been based on the natural theory of civil laws. When this happens, the ruler abuses his right. But this abuse has to be endured by subjects, and those things have to be endured by a private individual which he is not able to change.
§ 147. Of the right of the exile to dwell anywhere in the world
§ 145.
§ 7, part 2, Jus Nat.
§ 66, part 2, Jus Nat.
§ 562, part 6, Jus Nat.
By nature the right belongs to an exile to dwell anywhere in the world. For exiles do not cease to be human beings, because they are driven into exile, consequently compelled to depart from the place where they have domicile, a thing which is evident of itself. Therefore, since by nature all things are common, moreover since in primitive society any man is allowed to dwell anywhere in the world, and since by the introduction of ownership the necessary use of things, and consequently the right of living anywhere in the world cannot be absolutely taken away from any one, by nature the right belongs to an exile to live anywhere in the world.
§ 64, part 2, Jus Nat.
§ 563, part 6, Jus Nat.
§ 145.
A right belonging by nature to a man or born in him could be taken away from no one, and for this reason ownership could not be
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introduced, nor consequently could definite tracts of land be subjected to ownership, except with this tacit restriction, that, if in a special emergency the necessary use of things should happen to be taken completely from any one, some right would remain to him in those things which are subject to ownership, consequently, that it should be possible for him to dwell in a land subject to the ownership of some nation, even if he should be restrained from living with his own nation. Exiles are driven out or are compelled to depart from the place where they have domicile, and so they are not allowed to dwell with their own nation. Therefore by nature the right belongs to them to dwell in any place in the world which is subject to some other nation. He who is driven into exile cannot be driven out of the entire earth, for this cannot be done in a physical sense, unless life is destroyed, nor is it morally possible, since the ruler has no right over the lands not under his sovereignty.
§ 148. Of asking admittance
§ 147.
§ 409, part 8, Jus Nat.
Since by nature the right belongs to an exile to live anywhere in the world, moreover since it depends altogether on the will of the people, or on the will of the one who has the right of the people, whether or not he desires to receive an outsider into his state, an exile is allowed to ask admittance, but he cannot assuredly according to his liking determine domicile for himself, wherever he shall please, and if admittance is refused, that must be endured.
§ 693, part 6, Jus Nat.
§ 400, part 8, Jus Nat.
§ 456, part 8, Jus Nat.
§ 475, part 8, Jus Nat.
Elsewhere already we have suggested that there may be several reasons on account of which admittance may be denied and that they must be determined by the state. Therefore since in the entire third chapter of the eighth part we have shown what things are to be considered in establishing a state, if any one shall desire to consider properly the details, he will without difficulty recognize that there are legal causes for the denial of admittance. Here properly belongs the fact that the number of subjects is greater than can be provided for adequately from the things which are demanded for the needs, comforts, and pleasures of life, both as regards the people in general and also as regards the class of people who follow the same pursuit in life. Here also belongs the reason that there is fear lest the morals of the subjects
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may be corrupted, or lest prejudice may be aroused against religion, or even lest criminals be admitted, because of whom injury threatens the state, and other things which are detrimental to public welfare.
§ 149. Whether exiles are to be admitted
§ 145.
§ 137.
§ 148.
§ 693, part 6, Jus Nat.
A permanent residence in its territory cannot be denied to exiles by a nation, unless special reasons stand in the way. For since exiles have been expelled from the place where they have a domicile, consequently dwell, they are allowed to seek admittance elsewhere. Therefore, since to these who, driven from their homes, seek admittance, a permanent residence in the territory subject to its control cannot be denied, unless special reasons stand in the way; permanent residence in its territory cannot be denied to exiles by a nation, unless special reasons stand in the way.
Note, § 148.
§ 2.
§ 156, part 1, Jus Nat.
§ 121, part 2, Jus Nat.
§ 906, part 1, Jus Nat.
§ 237, part 1, Phil. Pract. Univ.
We have already indicated what reasons prevent the admittance of exiles. Moreover, since nations are free, the decision concerning these matters must be left to the nations themselves, and that decision must be respected. The right belongs to an exile to dwell anywhere in the world, but no absolute right to settle in any particular lands belongs to him, a thing which in fact is opposed to ownership. And if this right should be claimed as regards these lands, it is imperfect, consequently no nation can be compelled to receive exiles.
§ 150. Of compassion toward exiles
§ 145.
§ 137.
§ 259, part 4, Jus Nat.
We ought to be compassionate toward exiles. For exiles have been expelled from the place where they had domicile or have been compelled to depart from it on account of offences, therefore they have no fixed abode so that they can dwell in any place and support themselves honestly. Wherefore, since they cannot free themselves from this evil with which they are afflicted, and we ought to be compassionate toward those who cannot free themselves from the evil with which they are afflicted, therefore we ought to be compassionate toward exiles.
§ 652, Psych. Emp., and § 256, part 4, Jus Nat.
§ 619, part 1, Jus Nat.
§ 256, part 4, Jus Nat.
§ 642, part 8, Jus Nat.
There is no reason why you should object that exile is also inflicted as a punishment, nay more, that certain ones even desiring to go into exile because of fear of punishment plan flight for themselves, and that these are not worthy of compassion. Compassion, indeed, is not
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confined to those who have fallen into misfortune without fault on their part, but since it arises from love, which is extended to all men generally, it applies also to all who are wretched generally, whether they fall into wretchedness of their own fault or simply from misfortune. Nor is it to be feared lest on this account we may approve crimes and offences, if any one is an exile on account of them; for we love the person, we hold in abhorrence the crimes or offences, which they have committed. Since the act cannot be undone by us or by them, it is rather incumbent on us that we bring them back to a better moral life, and that, if they should desire to reform of their own accord, we should not stand in the way to prevent it; a thing which would certainly occur, if there were no place for compassion. Nevertheless we do not therefore deny that those are more worthy of compassion who go into exile without fault on their part, or have been driven into exile for an unjust cause. This also is here properly to be noted, that when an evil is such of itself that it ought not to be punished, no attention is to be paid to it by another nation, if any one has gone into exile for the sake of avoiding punishment; in order that this may be more plainly apparent, I propose to add the following proposition.
§ 151. Whether any one can be punished by a nation against which he has not offended
§ 642, part 8, Jus Nat.
§ 1061, part 1, Jus Nat.
§ 832, part 8, Jus Nat.
§ 34, part 8, Jus Nat.
He who has offended against a nation or committed some crime against it cannot on that account be punished by another nation to which he has come. For since the evil is not such of itself that it ought to be punished, and by nature the right belongs to a man to punish one who has injured him; by nature also the right belongs to no nation to punish him who has not injured it. Therefore, although the right to punish is a part of the civil power, and consequently belongs to the nation against which any one has offended or committed some crime, nevertheless one nation cannot on this account punish him who has offended against another nation or committed some crime against it. And so it is plain that he who has offended against one nation or committed some crime against it, cannot be punished by another nation to which he has come.
§ 559, part 8, Jus Nat.
§ 579, part 8 Jus Nat.
Evil deeds are punished in a state because either some member of the state, or the corporation itself, has been injured. But he who for
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the purpose of escaping a penalty comes as an exile to another state, has not on that account injured any member of the state or any private citizen, nor the corporation itself. Therefore both reasons fail, as to why any one can be punished by a certain state, consequently a wrongful act committed in one state does not affect another state, nor from that thing itself does any right arise against an exile.
§ 152. Who should be called suppliants
Those fugitives are called suppliants who beg another nation, or the one who has the right of the people, to defend them against their own nation, or the ruler of the state whence they come.
Suppliants of course are to be distinguished from exiles. For although exiles may be suppliants, nevertheless not all exiles are suppliants, whether they be voluntary or involuntary. So if one expelled from his native country on account of religion comes to another nation and seeks admittance there, he as a suppliant can entreat the ruler of the state to see to it that his property, which he has been compelled to leave, be delivered over to him. Likewise if any one is spitefully accused, without a cause, of fraudulent administration of the public goods, he can as a suppliant entreat the powerful ruler of another state to defend him against the threatened injuries. But what the rights of suppliants are will be more clearly evident when we have discussed the duties of nations toward each other and the rights arising therefrom. Of course this word is taken in the stricter meaning, although the broader meaning allows him to be called a suppliant who begs another that he defend him against some other.
§ 153. What the right to emigrate is
The right to emigrate is permission to go into voluntary exile.
So the right to emigrate belongs to subjects to whom permission is given to depart from the state, because they are devoted to a religion which the ruler of the state does not wish to tolerate. For it would not be necessary for them to depart if they consented to give it up. That the right to emigrate does not belong to every voluntary exile is readily evident. For exile is voluntary, when any one for the sake of escaping punishment becomes an exile, nevertheless he does not have the right
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to emigrate; for he goes into exile only in opposition to the will of the ruler, who cannot be said to permit it.
§ 154. Of the source of this right
§ 153.
§ 407, part 8, Jus Nat., and § 145 h.
§ 789, part 3, Jus Nat.
§ 77, part 8, Jus Nat.
Since the right to emigrate is permission to go into voluntary exile, moreover since the ruler of the state can allow this, either at his own discretion, or by virtue of the agreement entered into with other nations, or is understood to do this by virtue of the fundamental law; the right to emigrate arises either from agreement or from fundamental law, or depends upon the will of the ruler.
In a state of nature there is no right to emigrate; for this assumes that there are established states, consequently it depends upon the law of the state. Therefore the things which are to be maintained concerning the law of emigration are derived from that law as their source. At the same time the reason is to be considered, on account of which that must be granted. Moreover, that the law of a state can be changed by agreements and limited by fundamental laws is plain enough from the general principles of the law of nature and the special principles of universal public law.
§ 155. Of wrongs done to those who have the right to emigrate
§ 145.
§ 153.
§ 239, part 1, Phil. Pract. Univ.
§ 859, part 1, Jus Nat.
If the ruler of the state is unwilling to allow those to depart from the state who have the right to emigrate, he does a wrong to them. For he who has the right to emigrate may depart from the state, since that right consists in permission to go into voluntary exile. If then the ruler of the state is unwilling to allow this, that is contrary to his right. Therefore, since he does a wrong to another, who does what is contrary to that person’s right, if the ruler of the state is unwilling to allow those to depart from the state who have the right to emigrate, he does them a wrong.
§ 77, part 8, Jus Nat.
This happens if the right to emigrate comes from agreement entered into with other nations, or from fundamental law. If you say that the right to emigrate can likewise exist by force of the agreement entered into with the ruler of the state at the granting of the sovereignty, it is easy to see that by this agreement a fundamental law was established.
