wise. Where I have merely a right to acquire property in a thing, which is in common to all mankind, but cannot acquire property in it without the use of what is already the property of some other man, this man neither does me an injury, nor encourages or protects others, who have injured me, by excluding me from the use of what belongs to him. And thus, my right of acquiring things, which are in common, will, by his means, fail of producing its effect: whilst he, by whose means it so fails, will be chargeable with no crime, or no fault; because he has done nothing more than his property, in what I wanted to use, will justify him in doing. But where we have a right, in war, upon account of the damage which the enemy has done us, to take the goods. of the enemy, and these goods are in a neutral ship; if the neutral state, though it has property in the ship, should make use of its right of property to protect the goods against us, this protection makes it an accessory to the injury which gave us a claim upon the enemy to obtain reparation of damages; and, consequently, is inconsistent with the notion of neutrality. But whilst this answer removes one difficulty, it brings on another. If a neutral nation makes itself an accessory to the damages that the enemy has done, by protecting such goods of the enemy, as we have a right to take for reparation, when these goods are out at sea in one of its ships; why might the same nation, without making itself an accessory to those damages, protect the same goods when the ship is in one of its ports, or when the goods are on land within its territory? A law of nations, which is natural as to the matter of it, and positive only as to the objects of it, will furnish us with an answer to this question. Every state has, by the law of nations, an exclusive jurisdiction over its own territory. As long, therefore, as a state keeps within its own territory, and exercises its jurisdiction there, we have, by this law, no right to take notice of what it does; unless, indeed, where, by protecting some person who has committed a crime in our territory, it infringes upon our jurisdiction. But when its ships are in the main ocean; as they are then in a place out of its territory, where, by the law of nations, it has no jurisdiction, this law will allow us to take notice of the protection which it gives to the goods of the enemy, and to consider it as an accessory to the damages done by the enemy, if it gives them protection.

The goods belonging to a neutral state, or to any of its members, cannot lawfully be taken, when they are on board the ship of an enemy. The neutral state has, indeed, no jurisdiction in the ocean where the ship is; but it has property in the goods: and as the law of nature will not allow us, so there is no purely positive law of nations that will warrant us to violate this right of property. In the meantime, the neutral goods will not secure the ship itself. For the ship is neither the property of the neutral state, nor within its jurisdiction.

Since the members of a nation, which is engaged in a war, whether they act under particular commissions, or under the general commission of public war, may take the goods of the enemy, but cannot lawfully take any goods or ships which are the property of a neutral state, unless the goods are contraband; who shall be the judge in these two questions; that is, who shall determine whether the goods or ships, which the members of such a nation have seized upon and gotten into their possession, are the property of the neutral state; and if they are

its property, who shall determine whether they are contraband? Other neutral states, which have no interest in the goods or ships, might be unprejudiced judges: but the law of nations has not made them authentic judges. All nations are, in respect of one another, in a state of nature or of equality: no one nation has jurisdiction over the rest, and no number of nations has jurisdiction over any one. The same reason, which excludes all other nations from having jurisdiction in these questions, will exclude both the neutral nation, whose members claim property in the goods or the ships, and, likewise, the nation whose members have them in their possession, and claim them by the right of war. These two nations are, in respect of one another, in a state of equality; and neither of them has any authority over the other. The jurisdiction, which the neutral nation has over things, will not extend to the things in question: because they are not within its own territory. And its jurisdiction over the persons of its own members, will here give it no judicial authority: because, in these questions, its own members are the parties only on one side: the members of the other nation, are the parties on the other side; and the neutral state has no jurisdiction over their persons. In respect of these reasons, which exclude the jurisdic tion of the neutral state, there is no material difference between that and the other, to which the captors belong. The things in question, will, indeed, be within the territory of the latter, if the captors have brought the ships into their own ports. But the controversy arose upon the main ocean, which is out of its territory: and, as it had no jurisdietion, in the first instance, the subsequent act of bringing the things into its territory, will not give it jurisdiction. If any subsequent act can give it jurisdiction, it must be a subsequent consent of the parties. The foreigners, who claim the goods or ships, may agree with the captors to have their respective claims decided by the state, to which the latter belong. And such an agreement will bind them to submit to the sen tence of this state. But if the things were brought by force into the ports of the state, to which the captors belong, this act of foree can produce no effects of right, till it appears whether the force is lawful or not; that is, till it appears whether the goods might lawfully be taken or not: and, consequently, this act can produce no jurisdiction in the state, to determine whether they might lawfully be taken. Until the force is determined to be lawful, it gives the state no jurisdiction, where it had none before. But the force cannot be determined to be lawful, till there is a definitive sentence, that the things which are in the pos session of the captors, might lawfully be taken. The state, therefore, cannot have jurisdiction by means of this force, till the question, in which the jurisdiction that we are inquiring after, is wanted, has been determined.

In the usual practice of nations, the state, to which the captors belong, decides whether ships or goods, which are seized upon in war, are the property of a neutral state, or of an enemy; and whether the goods, if they are the property of a neutral state, are contraband or not. But since the law of nature does not give it any authority in these questions, which can properly be called jurisdiction, it will be necessary, if there is no purely positive law of nations, that has given it such jurisdiction, to inquire upon what natural reasons its right to decide about them is founded, and what sort of a right this is. The state, to which

the captors belong, has a right to inspect into their behaviour; both because they are members of it, and because it is answerable to all other states for what they do in war; since what they do in war, is done either under its general, or under its special commission. The captors, therefore, are obliged, upon account of the jurisdiction which the state has over their persons, to bring such ships or goods, as they seize in the main ocean, into their own ports: and they cannot acquire property in them, till the state has determined whether they were lawfully taken or not. This right, which their own state has to determine this matter, is so far an exclusive one, that no other state can claim to judge of their behaviour, till it has been thoroughly examined into by their own: both because no other state has jurisdiction over their persons; and, likewise, because no other state is answerable for what they do. But the state, to which the captors belong, whilst it is thus examining into the behaviour of its own members, and deciding whether the ships or goods, which they have seized upon, are lawfully taken or not, is determining a controversy between its own members and the foreigners who claim the ships or the goods: and this controversy did not arise within its own territory, but in the main ocean. The right, therefore, which it exercises, is not civil jurisdiction; and the civil law, which is peculiar to its own territory, is not the law by which it ought to proceed. Neither the place, where the controversy arose, nor the parties, who are concerned in it, are subject to this law. The only law, by which this controversy can be determined, is the law of nature applied to the collective bodies of civil societies; that is, the law of nations. Unless, indeed, there have been any particular treaties made between the two states, to which the captors and the other claimants belong. They may have mutually bound themselves, by particular treaties, to depart from such rights as the law of nations would otherwise have supported: goods, which would naturally have been contraband, may, by express treaty, be made free; and, on the other hand, goods which would naturally have been free, may be made contraband: neutral goods, which are on board the ship of an enemy, may, by express treaty, be made lawful prize, though, by the law of nature, they would have been free: and the goods of an enemy, on board a neutral ship, may be made free, though, by the law of nature, they would have been lawful prize. Where such treaties have been made, they are a law to the two states, as far as they extend; and to all the members of them, in their intercourse with one another. The state, therefore, to which the captors belong, in determining what might, or what might not, be lawfully taken, is to judge by these particular treaties, and by the law of nations taken together.

This right of the state, to which the captors belong, to judge exclusively, is not a complete jurisdiction. The captors, who are its own members, are bound to submit to its sentence; though this sentence should happen to be erroneous: because it has a complete jurisdiction over their persons. But the other parties in the controversy, as they are members of another state, are only bound to submit to its sentence, as far as this sentence is agreeable to the law of nations, or to particular treaties: because it has no jurisdiction over them, in respect either of their persons, or of the things that are the subject of the controversy. If justice, therefore, is not done them, they may apply to their own

state for a remedy; which may, consistently with the law of nations, give them a remedy, either by solemn war, or by reprisals. In order to determine when their right to apply to their own state begins, we must inquire when the exclusive right of the other state to judge in this controversy ends. As this exclusive right is nothing else but the right of the state, to which the captors belong, to examine into the conduct of its own members, before it becomes answerable for what they have done, such exclusive right cannot end, till their conduct has been thoroughly examined: natural equity will not allow, that the state should be answerable for their acts, till those acts are examined by all the ways, which the state has appointed for this purpose. Since, therefore, it is usual in maritime countries to establish, not only inferior courts of marine to judge what is, and what is not lawful prize, but likewise superior courts of review, to which the parties may appeal, if they think themselves aggrieved by the inferior courts; the subjects of a neutral state can have no right to apply to their own state for a remedy against an erroneous sentence of an inferior court, till they have appealed to the superior court, or to the several superior courts, if there are more courts of this sort than one, and till the sentence has been confirmed in all of them. For these courts are so many means appointed by the state, to which the captors belong, to examine into their conduct: and till their conduct has been examined by all these means, the state's exclusive right of judging continues. After the sentence of the inferior courts has been thus confirmed, the foreign claimants may apply to their own state for a remedy, if they think themselves ag grieved: but the law of nations will not entitle them to a remedy, unless they have been actually aggrieved. And even, if upon their own report, they appear, in the judgment of their own state, to have been actually aggrieved; yet this will not justify it in declaring war, or in making reprisals immediately. When the matter is carried thus far, the two states become the parties in the controversy. And since the law of nature, whether it is applied to individuals or to civil societies, abhors the use of force, till force becomes necessary; the supreme governors of the neutral state, before they proceed to solemn war or to reprisals, ought to apply to the supreme governors of the other state, both to satisfy themselves, that they have been rightly informed, and, likewise, to try, whether the controversy cannot be adjusted by more gentle methods.

natural.

Privileges of am- XX. *Though Grotius refers the privileges of ambasbassadors, how far sadors, to a purely positive law of nations; yet, after any person, who is sent from a foreign nation in the character of an ambassador, is received in that character by the nation, to which he is sent; the several privileges, that Grotius mentions, will arise out of the law of nature, applied to the collective persons of civil

societies.

The law of nature does not give any one nation a strict right to demand, that any other nations shall receive ambassadors from it. This is no otherwise enjoined, than as a matter of mutual convenience, or at the most, of friendship or kindness. An intercourse of good offices is due to mankind in general, and particularly to all, who have not de

Grot. Lib. II. Cap. VIII. § I. III.

served to be treated as enemies. And this intercourse is kept up and carried on amongst nations by means of ambassadors; that is, of persons, who are sent from one nation to another to transact business between them. Sometimes they are thus sent to procure peace, where the two nations are at war, or to maintain peace, by adjusting such controversies as are arising between them, and might otherwise be occasions of war. Sometimes their business is to form an alliance between the nations for their mutual defence, or to establish other treaties, which tend to advance their mutual interest. It would be unkind and unfriendly, as well as imprudent, to refuse them admittance, when they come for such purposes as these. But since the rights arising out of those affirmative precepts of the law of nature, which relate to benevolence, are of the imperfect sort; if a nation should refuse to receive ambassadors, who are sent to it, this cannot properly be called an injury to the nation, which sends them. There may be such reasons against receiving them, as will vindicate it even from the charge of being unkind or unfriendly. *Grotius reduces these reasons to three general heads. First, there may be reasons arising from the nation, which sends them. A nation, which has broken friendship with us by acts of hostility, can have no pretence to charge us with being unkind or unfriendly, if we refuse to receive ambassadors from it; unless they come with proposals of amends. If it has been the practice of a nation to make use of its ambassadors to spirit up our people to rebellion, or to seduce away our manufacturers and artificers; the duty of benevolence does not require us to run the hazard of being treated in the same manner again. Secondly, sufficient reasons against receiving an ambassador may arise from the particular character or circumstances of the person, who is sent. If he is of a profligate character; if he has formerly behaved perfidiously towards us, or can justly be charged with having been guilty of any open affronts or insults towards our country in general, or towards the constitutional governors of it in particular; however unfriendly it might be not to receive any ambassador from the nation, to which he belongs, there can be no unfriendliness in not consenting to receive him in this capacity. Thirdly, the business, about which a nation is desirous of sending an ambassador, may be a reason, why he should not be received. For, certainly, if we know, beforehand, what instructions he is charged with, and what business he comes about, there is no more unkindness in refusing to treat about it at all, than in rejecting his proposals after they are made. Grotius informs his readers, that he is here speaking of such, as are called extraordinary ambassadors, who come charged with some particular negotiation: for as to ordinary ambassadors, that are sent from any nation to attend constantly upon the courts of another nation, not to carry on any particular purpose, but to manage its business generally in those courts, and to observe what passes there; the practice of the ancients, who knew of no such officers, has sufficiently shown us, that they are not necessary: and, consequently, there is no great occasion for being very scrupulous about refusing admittance to ambassadors of this sort.

Our author's opinion about the personal privileges of ambassadors is, that whilst all other persons, who reside in the territory of any na† Grot. Ibid. § IV.

Grot. Lib. II. Cap. VIII. § I. III.