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COMMERCIAL INTERCOURSE OF NATIONS.
history of the law, indeed, we even find, that such foreigners have frequently been allowed the privilege of being judged according to their own laws, and by judges of their own nation. Such an arrangement, however, is a matter of contract, or treaty; not of international right; each nation having the exclusive sovereignty and jurisdiction within its own territory.
In the same way foreigners have a right to protection in the disposal of the commodities allowed to be imported by them; subject to such duties and customs, and to such restrictions, as the government of the state may have judged it necessary, or expedient, to impose. And when admitted to trade, foreigners have also a right, along with the native inhabitants, and naturalized subjects, to the benefit of the two great internal establishments of civilized nations, connected with commerce; namely, to be placed on the same footing with subjects, with reference to the national coin, or money, and to have the free and safe use of the national post, for the conveyance of letters of correspondence and other mercantile documents. Farther, agreeably to the principles of international law, and under the express sanction of the Droit des Gens Moderne de l'Europe, there has come to be recognised, a power, in a sovereign state, to appoint and station public agents or functionaries, in the territories of other foreign states, to watch over the interests of the commerce carried on by their subjects, with the subjects of these other foreign states, under the appellation of consuls, in the modern sense of that term. Farther still, when there is established, or likely to be established, a direct and extensive traffic between two
nations, experience has shown the advantage of ascertaining and securing their reciprocal rights and obligations by treaties of commerce. The number of these treaties has greatly increased, since the middle of the 17th century, and they have been divided, into those, which concern commerce in time of peace; those which regard the rights of neutral commerce ; those which refer to the case of a rupture ; and those which fix the rights of consuls.
As the intercourse of nations in their individual capacity, for the purposes of commerce, or otherwise, is nearly as frequent by sea, as by land, the rights of nations relative to the use of the sea, fall under this division. And the subjects usually discussed, are:-1st. The right to the shore, including the now in Europe happily abolished right of shipwreck, and the right of salvage. 2d. The right over lakes, and seas nearly enclosed by land. 3d. The right to the free use of the oceans, and open seas. 4th. The maritime ceremonial.
But the object of our present inquiry, is merely the arrangement of the general component parts of international law. And any further details in the department just alluded to, we reserve for an historical view of the maritime law of nations.
TRANSITION TO A STATE OF WAR.
Transition from a state of Peace to a state of War.
Hostile Relations of Nations.
Having thus enumerated and endeavoured to arrange in a natural order, not only the chief general permanent and common rights of nations in relation to each other, but also the chief particular and occasional rights of nations, we have to remark, that, while all these rights are observed, nations are said to be in a state of peace. But these rights are frequently violated, or attempted to be infringed. And the want of the compulsory power, which is exercised by the united community, against the offending individual, or individuals, in virtue of the internal organization of states, gradually effected in the progress of civil society, is grievously felt, and is, in international law, the great desideratum.
Even among nations, however, besides the perceptions and feelings of right and wrong, and of moral duty, which we hold to be applicable to men, in their collective, or national character, as well, as in their individual capacity, there arise, or exist, those considerations of self-interest, or prudence, which, although they do not call forth moral approbation, as being virtuous, exercise a great influence over mankind, as mentally and corporeally constituted, and as inhabitants of this earth. The considerations, to which we allude, are, indeed, the source, basis, and support of
that interior organization among a people, to which, under the title of Gesetzgebung, Professor Kant has ascribed the whole foundation of law. And, although we think, that view, in a great measure erroneous, the considerations, to which we allude, are certainly those, which, in the interior of states, have led, and lead, to the observance of the negative rules of justice by the great body of the people, and to those legislative and judicial establishments, by which those rules are physically enforced against the individuals, who dispute, and resist, or infringe them. These considerations, we enumerated in the earlier part of our Inquiries in the Science of Law, when endeavouring to mark the distinction between ethics and law. And it is unnecessary here to repeat them. But it is manifest from observation, and the experience of past ages, that, in the progress of civilization, and in the extended intercourse of nations, these considerations, which in the internal structure of communities, operate so powerfully and beneficially on individuals, exert also a salutary influence on the conduct of independent states and governments towards each other. The expectation of the benefits which arise from the continuance and cultivation of amicable relations with other states ; and the dread of suffering greater evils, from severe retaliation, or of provoking the general and united hostility of other nations, both tend to ensure the observance of the rules of international law, and to prevent the infringement of those rules, which long established usage has recognised and sanctioned. And under the influence of such considerations, there are several modes, by which the rights and obligations of
HOSTILE RELATIONS OF NATIONS.
nations may be maintained, and their claims, or pretensions, and disputes, may be settled, without actual recourse to physical force.
One mode of such settlement appears to be by compromise, by mutual concession and amicable adjustment. Another mode appears to be by voluntary reparation of wrong, and concession. A third is the mediation of neutral and disinterested states. And a fourth mode, is by reference to the arbitration of one or more other independent states ; none of them recognising any human superior.
But when all these modes of adjustment fail, there is no alternative but recourse to physical force, directed against the whole, or any part of the offending nation, in vindication of the violated right; and we therefore proceed to the other great class of particular and occasional legal relations among independent states, those of a state of hostility. And, as disputes among individuals united into one community or state, arising from actual or supposed, collisions of interests, are settled by litigation before, and unlawful aggressions are punished by, the judicial tribunals of a country, these hostile relations, originating in actual or supposed collisions of interest among nations, or in actual aggression, may be lawfully assumed, for the legitimate purposes of self-preservation, independence, resistance to aggression or control, or the prevention of one or more states, acquiring such a preponderance of power, as to endanger the liberty, or political existence of adjacent states. In this way, war is the ultimate mode of enforcing the rules of justice, reciprocity and general expediency among nations. And thus contem