and saw no reason why he should establish them: and, on the contrary, he may have established many things in fact, and for weighty reasons, where we are not aware of any reason at all. But the law of nations is positive only in the manner of applying it, and is natural as to its matter: it is the law of nature, applied by positive consent, to the artificial persons of civil societies: and, consequently, the dictates of it are only the dictates of right reason, and may be collected by arguing from the nature of things, and from the condition and circumstances of mankind, when they are considered as formed into such societies.

The history of what has passed, from time to time, amongst the several nations of the world, may, likewise, be of some use in this inquiry: not because any constant and uninterrupted practice in matters which are indifferent by the law of nature, is to be collected from thence; but because we shall there find what has been generally approved, and what has been generally condemned, in the variable and contradictory practice of nations. If the law of nations is founded upon natural principles, and is not merely a positive law, which has no other foundation besides the will of the legislators, the approved practice of mankind will help to inform us what its dictates are. There are two ways, says *Grotius, of investigating the law of nature: we find out this law either by arguing from the nature and circumstances of mankind, or by observing what has been generally approved by all nations, or, however, by all civilized nations. The former is the more certain of the two: but the latter will lead us, if not with the same certainty, yet with a high degree of probability, to the knowledge of this law. For such an universal approbation must arise from some universal principle: and this principle can be nothing else but the common sense or reason of mankind. Since, therefore, the general law of nature may be investigated in this manner, the same law, as it is applied particularly to nations as to moral agents, and is called the law of nations, may be investigated in the same manner.

From hence we may see what use is to be made of the judgment and testimony of skilful persons, in these inquiries. Their judgment will help to point out the law of nations: because, what is approved of by men of prudence, and honesty, and experience, is more likely to be conformable to the dictates of right reason, than what is approved of only by the vulgar, and unthinking, and dissolute. And their testimony will be of weight, as it will be an evidence not only of their own sentiments, but likewise of what they have found, upon diligent inquiry, to be the general sentiments of the civilized part of mankind.

It may be necessary here to caution the reader against imagining, that a law of nations, which is purely positive, might be established, if not by the constant and uninterrupted practice, yet by the approved practice of nations. For no practice which is indifferent in itself, and is neither commanded nor forbidden by the law of nature, can be approved, for any other reason, than because it is conformable to some positive law. The notion, therefore, of an approved practice of nations, where the law of nature is silent, must necessarily presuppose the existence of a purely positive law of nations: and approved practice, if it presupposes this law, cannot be the cause of it. If there is any such law,

*Grot. Lib. I. Cap. I. § XII.

it must have been introduced and established by mere usage, which consists in uniform and uninterrupted practice: but we have already observed, what our author confesses, that in the dealings and intercourse of nations with one another, as history relates it, no such usage is to be found.

As we have now seen what the law of nations is, and where this law is to be found; there will be no occasion to detain the reader with a particular examination of the several cases that may arise, in the intercourse of nations with one another. If he understands what the law of nature is, when it is applied to individual persons in a state of equality, he will seldom be at a loss to judge what it is, when he is to apply it to nations considered as collective persons in a like state of equality. But we may perhaps be misled in our judgment for want of observing, that in the intercourse of nations sometimes the civil law of each nation, and sometimes the general law of nature, which considers the several members of a civil society, not as parts of a collective person, but as so many individual persons, is the proper measure of what is right and what is wrong. It may therefore be necessary to consider such of the leading cases, as will help to point out the distinct provinces of these several laws.

of territory.

Effects of the right VI. A nation, *by settling upon any tract of land, which at the time of such settlement had no other owner, acquires, in respect of all other nations, an exclusive right of full or absolute property, not only in the land, but in the waters likewise, that are included within the land, such as rivers, pools, creeks, or bays. This absolute property of a nation, in what it has thus seized upon, is its right of territory.

When I say, that a nation's right of territory consists in the absolute ownership of the land, where it has settled, or of such waters as are an appendage to the land; I mean its right of territory, as far as other nations, or the members of other nations, are affected by this right. For in respect of its own members, its right of territory consists, not in an absolute, but in a paramount property. Occupancy in the gross, gave the nation from the first a right of absolute property in the land, where it settled. But a subsequent distribution and assignment, or a subsequent occupancy in parcels, gives the several members of the nation private property in their respective shares. This private property, which they acquire by the assignment of the public, or by their own particular occupancy, with the leave of the public, though it implies a right to use what is thus acquired, and to dispose of it, is not strictly a right of full property or absolute ownership. It is property; because it is an exclusive right, in respect of all other individuals, to use the land, and to dispose of it: but it is not full or absolute property in the strictest sense; because the public has a right to limit and to direct the use and disposal in such a manner as the common safety and welfare require. This right of the nation is a sort of property: it is an exclusive right in respect of all other persons whatsoever, whether individual or collective, to direct the use and the disposal of the land for the purposes of social union. And this sort of property, as it is thus distinguished from private ownership, is what our author calls paramount property.

• See Book I. Chap. III. § XIII. Book II. Chap. V. § III.

But after the lands, which the nation has acquired, are thus distributed amongst the several members of it, and are held by them in private ownership, so that nothing besides paramount property remains to the public in respect of its own members; the nation, considered as one collective person, has still, in respect of all other nations, and of all other individuals, an exclusive right of full property in the whole tract of land: not only because what passes within the nation, the manner in which it parcels out the country where it settles amongst its own members, and the terms, upon which they hold their several shares, does not fall under the notice of foreigners; but, likewise, because when all the members of the society are considered as one collective person, the whole property of the land, as well what has been granted by the lic to its several parts, as what remains in the public itself, is vested in this collective person.

pub

In consequence of this exclusive right of property, which a nation has in its own territories, the law of nations is not the only measure of what is right or wrong in the intercourse of nations with one another. This right of territory extends the authority of civil law to all questions, which relate to the use or the private ownership of such moveable goods, as are within the territory of the nation, and of such immoveable goods as are confessedly a part of its territory; whether its own members only are concerned in these questions, or the collective bodies or the individual members of other nations. Thus every state has authority to determine, by positive laws, upon what occasions, for what purposes, and in what numbers, foreigners shall be allowed to come within its territories, to exclude them from trading there at all, or to regulate their trade, to leave them under their natural incapacity of inheriting immoveable goods, or to remove this incapacity, to prevent them from inheriting moveable goods, or to prescribe the conditions upon which they may inherit.

Civil laws, when they causelessly and unreasonably exclude foreigners either from coming into the territories at all, or from trading there, are inhospitable. But these inhospitable civil laws are no otherwise contrary to the law of nations, than as this law, like the general law of nature, enjoins the duties of humanity and benevolence. Every nation. has, by the law of nations, as every individual has by the law of nature, a right to judge for itself, how far its intercourse, either of the commercial or of the friendly sort, is likely to be detrimental to itself. So that, to cut off either or both sorts of intercourse, will be no act of injustice; though it will be wrong, if it is done causelessly. A nation has a moral power to withhold its benevolence; and they, from whom it is withheld unreasonably, though they are not treated kindly, are not injured.

Inhospitality amongst nations is less usual now, than it was in early times. Indeed every nation might rather be said to use a prudent and necessary caution for its own security, than to be guilty of a breach of hospitality, by excluding foreigners from coming into its territories; when, upon account of the frequent practice of piracy and robbery, there was such a strong presumption, that all strangers came for these purposes, as made it no incivility to ask strangers, whether they were not freebooters, and to call them, in the common way of speaking of

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them, by the name of enemies. *Cicero gives a different turn to this kind of language. He remarks, that such a person, as should properly be called perduellis, or an enemy, was, in the early times of Rome, called hostis, which appears, from the twelve tables, to signify a stranger. This, he says, was a tenderness of expression: an enemy was called by the milder name of a stranger, with a design to abate the odiousness of the character. But Grotius seems to have given a juster account of the matter, when he considers this rather as a harshness of expression towards strangers, than as a tenderness of expression towards enemies. An enemy, in the old language of Rome, was called a stranger, not be cause they, who used this language, intended to compliment their enemies with the tender name of strangers; but because, in those early ages, they considered every stranger as an enemy.

any

Though the civil laws of every nation are the proper measure of the right, which foreigners have to make use of its territories, for any pur pose whatsoever; yet these laws, like all others, admit and require the equitable exception of necessity. If the civil laws have forbidden particular foreigners to come within the territory, or to bring any par ticular goods into any of its ports, or to come into any of them with a ship of force, under a certain penalty; foreigners, who stray thither by land, or whose ships are driven into the ports by stress of weather, may, by the letter of the law, be subjected to the penalty, but the equitable rules of interpretation will exempt them from it.

In consequence of the property, which every nation has in its own territories, the rights of harmless profit amongst nations are of the same sort, and are under the same limitations, with the like rights amongst individuals in a state of nature. They are rights, which may be maintained in theory; but the nature of them renders them precarious in their exercise. This matter has been explained already in its proper place. But we may add here, that though a passage for the goods of merchants or traders through the territories of a nation, either over the land, or upon the rivers, or upon such arms of the sea, as are appropriated, is commonly reckoned amongst the claims of harmless profit; yet it is consistent with the law of nations to demand some toll or other acknowledgment for such passage. Grotius allows, that all payments of this sort are just, as far as they have any relation to the safety of the goods, or other benefit of the trader. If a nation, upon account of such a passage, is at expense in keeping up a road by land, or in repairing locks and sluices for the convenience of navigation, or in maintaining light-houses upon the coasts, or in guarding the traders by an armed force against pirates or other robbers; so much may undoubtedly be required of foreigners in their passage, as will repay these or the like expenses. But the nature of all rights of harmless profit will lead us one step farther: for since bare passage through the territories of a nation, though it should occasion none of these expenses, cannot be claimed without the consent of the nation; if it is in any degree probable, that the nation, by granting such passage, will lose an advantage, which it might have made for itself; there is no injustice in demanding toll upon this consideration.

De Offic. Lib. I. Cap. XII.

+ See Book I. Chap. V. § VIII. IX.

† Grot. Lib. II. Cap. VII. § XIV. Cap. XV. § V.

law of nations.

VII. Where a question arises between two nations Questions about about the extent of their respective territories; that is, extent of territory about their respective right to this or that tract of belonging to the land; the civil law of either nation cannot be the proper measure, by which the controversy is to be determined. The general property of a nation in its own territory, as it is an exclusive right to a certain tract of land, implies a right to prescribe to all others, whether they are nations or individuals, the conditions, upon which they shall be allowed to make use of this tract of land, or to take part of it in private ownership. By this accident the authority of the civil law of the nation is extended beyond its own members: and if foreigners want to use or to acquire in private property what belongs to the nation, they must submit to use, or to acquire it upon such terms as the nation will agree to. But when the question is about the right of territory itself, whether such a particular tract of land is included in the general property of the nation or not; the civil law of the nation has no authority in this question. The authority of the civil law can extend no farther than the nation's jurisdiction. But as it has no direct jurisdiction over the person of the other party in the dispute; that is, over the collective body of the other nation; so neither has it any indirect jurisdiction over this other party, by having a direct jurisdiction over the thing in question; because the question is, whether it has any such direct jurisdiction over the thing or not.

In a state of natural equality a controversy between two individual persons, about the extent of their respective property, must be decided by the law of nature. In like manner the law of nations is the rule for deciding a like controversy, where the contending parties are two nations, and the matter in question is the extent of their respective territories or general property. But since the law of nations is only the law of nature applied to the collective persons of civil societies, and these collective persons are, in respect of one another, in a state of natural equality; if we know what the law of nature would determine in any case between individuals, the law of nations will, in like circumstances, determine in the same manner between civil societies.

Express compacts, by which two nations have settled the bounds of their respective territories, are binding upon the nations, and will ascertain their respective claims. For want of such express compacts, recourse must be had to usage, which is a tacit compact. The mere cultivation, or other use of the land by the members of one of the nations, will prove occupancy: but if the land, which is thus seized, was at the time of seizing it, a part of the territory of the other nation; such cultivation does not prove property. All occupancy gives possession; but in order to produce property, either general or particular, it must be the occupancy of a thing, which, at the time of seizing it, had no owner. But if the land, which is in dispute, has been cultivated, or otherwise used exclusively, from time immemorial, by the members of one of the nations without any interruption at all, or without any but what has been withdrawn as wrongful; this is an evidence, either that this land was included in the occupancy, which the nation made at its first settlement, and so was a part of its original territory, or else that it was acquired afterwards by mutual agreement. A claim, likewise, may have been kept up, without any cultivation or use of the